Medical Liability – The Moral Healthcare Blog

What Has PAMED Done to Improve Tort Reform in Pennsylvania?

Pennsylvania has made amazing strides in medical liability reform WITHOUT CAPS! Follow the link to see the summary of opportunities that other states can pursue without damaging victims’ rights.

What Has PAMED Done to Improve Tort Reform in Pennsylvania?

Most Pennsylvania physicians — more than 93 percent according to a 2009 study published in the Journal of the American Medical Association —report that they continue to engage in defensive medicine as a result of the state’s hostile medical liability environment.

Physicians often ask us, “What has the Pennsylvania Medical Society [PAMED] done to address this problem in the past and what are you doing now to achieve meaningful tort reform in Pennsylvania?”

What Has PAMED Done to Improve Tort Reform in Pennsylvania?

RAND Institute for Civil Justice | RAND

Most Physicians Will Face Malpractice Claims, But Risk of Making Payment Is Low

The most comprehensive analysis of the risk of malpractice claims by physician specialty in more than two decades finds that U.S. physicians have a greater than 75% career-long risk of facing litigation. In some specialties, doctors can be virtually certain of a lawsuit over the course of their careers. However, the vast majority of those claims will not result in payment to a plaintiff.

New study: Tort reform has not reduced health care costs in Texas

Medicare spending up

The researchers assumed that doctors who faced a higher risk of being sued — those in counties that had larger numbers of malpractice cases — would perform more tests and procedures than necessary to protect themselves from lawsuits. With tort reform, which limited damage awards against doctors, the need to practice such “defensive medicine” would decline, the argument goes.

But in comparing Texas counties in which doctors faced a higher risk of lawsuits with counties where the risk was lower, the researchers found no difference in Medicare spending after tort reform and indications that doctors in higher- risk counties did slightly more procedures.

“If tort reform reduces spending, it would have the biggest effect on high-risk counties,” Silver said. He noted that those tend to be large and urban.

“This is not a result we expected,” said Bernard Black, a co-author and a professor at Northwestern University’s Law School and Kellogg School of Management.

Health care spending has increased annually everywhere, the researchers said, including in the states with caps on malpractice payouts — now at 30, counting Texas, said David Hyman, a co-author and professor of law and medicine at the University of Illinois.

But, said Hyman, who worked on health policy for President George W. Bush at the Federal Trade Commission, “we found no evidence that Texas spending went up slower in comparison to all other states and may have had an increase.”

The researchers said their study suggests that Medicare payments to doctors in Texas rose 1 to 2 percent faster than the rest of the country, Black said.

Since tort reform, some Texas residents have complained that they cannot find a lawyer to pursue a malpractice case because of the $750,000 cap on payouts for pain, suffering, disfigurement and mental anguish. The limit often makes litigation cost prohibitive, patients and lawyers said. That concern was not raised in the paper, although the researchers said claims of huge malpractice payouts and rampant “frivolous” lawsuits before tort reform are greatly exaggerated by its advocates.

Silver said he was “very pessimistic” that policymakers will heed the study. “The rhetoric on both sides tends to be very extreme,” he said.

Meme-busting: Tort reform = cost control – The Washington Post

Meme-busting: Tort reform = cost control – The Washington Post:

If the pie represents our total health-care spending, then the blue wedge is defensive medicine. Not as big as you thought, likely. But the red sliver, which I pulled out for easier viewing, is what we could expect to see in savings from tort reform.

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N.Y. Malpractice Program May Offer Model For Medical Liability Cases – Kaiser Health News

N.Y. Malpractice Program May Offer Model For Medical Liability Cases – Kaiser Health News:

At its core, the New York program, called judge-directed negotiation, is simple: When a medical malpractice lawsuit is filed, a judge with expertise in medical matters becomes the point person for that case. He or she supervises the entire process and brings the parties together as often as necessary to discuss the case and help broker a settlement.

This is very different from what typically happens now: The pre-trial discovery phase, in which depositions are taken and other evidence is gathered, sometimes drags on for months or even years. A number of judges may be involved over that period, and with no one person pushing the parties toward resolution, serious settlement discussions generally don’t happen until late in the process, often after a court date has been set.

A judge overseeing the entire case can make sure the parties don’t dawdle over such things as procedural meetings to set up discovery dates. From the beginning, that designated jurist can delve into the case with an eye toward settlement, says Judge Douglas E. McKeon, an administrative judge in the Supreme Court of Bronx County, who pioneered this approach in 2002. He discovered that “if you created a process that people knew had the potential to get a case settled sooner rather than later for significant sums of money, they came in and they were ready to talk,” he says.

Sorry that a lot of these posts are just snippets, but I keep them for my own future reference, and it’s either this or EverNote…

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Evidence Based Medicine and Reform

This week has been very disappointing, with the USPSTF breast cancer screening guidelines coming out and recieving such an intemperate analysis by virtually everyone with access to a microphone or a camera.

Here is a very thoughtful analysis for those who are interested, but I’m really writing this because of what it says about us as Americans and our love-hate relationship with science.

So, researchers at USPSTF have made an evaluation and recommendations that fly in the face of “common sense.” Common sense in America being that more is always better, whether it be testing or surgery or whatever. You can’t be overtested, there are no downsides to excessive intervention. Except when there are. I will not go into the downsides of overtesting and overdiagnosing, but it really bothers me that we look to science to advance medicine, to make breakthroughs, to guide treatment and yet, we get a recommendation that falls outside of what we “know” to be true, we flip our collective gaskets.

Apparently, sensing opportunity, Glen Beck had on Bernadine Healy, whom I remember becasue she was in a position of responsibilityin Medicine (she was the Director of NIH from 1991-93), and she apparently doesn’t care much for scientific thinking. She trotted out the old saw about prostate cancer survival being better here in America than in the UK because, obviously, the British hate their citizenry.

I have this debunking on the blog here, and it is basically that screening finds things that don’t need treatment, but treating all of these cases as if they are life threatening makes our numbers look good. For a better estimate of how the US really does in saving people for dying from preventable causes, go here to see we have the distinction of being 19th out of 19.

But hearing about Ms. Healy being on glen beck reminded me that I had a letter published in US News (that’s what the editor told me, though I never actually could find the link – ah, well), after she wrote an article praising anecdote above evidence based medicine. HCRenewal has an analysis here, and here is my letter:

To the Editor:

Healy castigates the practice of evidence based medicine in her polemic as if it were anathema to medical science, and, more particularly, to the individual physician’s practice of medicine. Hippocrates knew that “Experience is delusory.” “Experience,” or anecdote, is sometimes helpful in medicine, but often harmful, because we physicians often internalize our experience into hard rules about treating patients. This often leads us down dangerous paths.

Evidence based medicine is long overdue counterweight to this kind of medical practice. EBM, when evidence is available, makes us think hard about our practices: Are we doing this because that’s the way we’ve always done it, or because we have scientific research to back up our decisions? Sadly, it is too often the former, because the evidence is just not there or has not yet been synthesized into a useful form, or, most commonly, not yet reached the physicians “in the trenches.” EBM is not discarding or devaluing physician judgment,” as Healy argues, it is rather an attempt to make our judgment more rational.

I find it astonishing that Healy trumpets the jury awarding damages against a physician who did not order a PSA test based upon the best evidence available to him. Every physician should howl in protest at this outcome. Using this standard, we should all have monthly full body high speed CT scans and massive blood testing to search for every possible disorder that comes to the mind of the physician or the patient. But we do not practice this way because it is, yes, I’ll say it, stupid!

Evidence based medicine is not a “straightjacket”, but a means to an end: providing the best care based on the best scientific evidence we have.

So are we a scientifically based medical community and society, or are we thinking irrationally and letting fear mongers lead us over a cliff?

Don’t answer that.

How to reform the broken medical malpractice system. – By Darshak Sanghavi – Slate Magazine

For many doctors, the malpractice case against a family physician named Daniel Merenstein epitomized how the broken medical liability system drives up costs. In 1999, Merenstein, then a resident, saw a 53-year-old man for a routine checkup and discussed with him the dubious value of a blood test to screen for prostate cancer. Since the test leads to many false positives and pointless treatments that can cause impotence and other harm, neither the American Cancer Society nor U.S. Public Health Service support its routine use. Presented with the data, the patient chose not to get the test.

When the man later developed prostate cancer, he sued Merenstein and the residency training program and ultimately won $1 million. According to the plaintiff’s attorney, the doctor should have ignored the evidence-based national guidelines and not even have given the patient the choice to refuse the test.

This is the same story told on This American Life last month, and it is quite disturbing. In my “to-do list” for health care reform, medical liability reform is relatively low on my list*, but this story gives me pause.

I hope we can address this and make following guide lines in good faith a reason to dismiss a lawsuit. For more information on guidelines and Comparative Effectiveness Research in action, go here.

*Caps are not even on my list, but there are many other things we can do that benefit patients AND physicians, as outlined in this Slate article, and by the AMA.

NY Times: Medical Malpractice System Breeds More Waste

From the NY Times “Ecnomic Scene,” with thanks to New America Health Blog for the link.

The title belies the very even-handed way this topic is addresses. Worth reading.

The debate over medical malpractice can often seem theological. On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive. On the other side are those liberals who see malpractice reform as another Republican conspiracy to shift attention from the real problem.

Yet most people, I suspect, still aren’t sure exactly what to think. For them, the good news is that the issue has inspired a lot of research by economists and others with no vested interest. And after sifting through years of data, these researchers have come to some basic factual conclusions.

Tort Reform does not necessarily equal caps

From the AMA.

Tort reform may still be coming, per President Obama’s Address last week. While caps are still the AMA’s favorite remedy, in this recent letter they outline some other considerations…

Alternative Reforms

While the AMA continues to advocate for proven reforms like MICRA, we are also committed to finding innovative solutions to the broken medical liability system such as offering of grants tostates to pursue alternatives to current tort litigation. These alternatives include:

• Health Courts. Health courts would provide a forum where medical liability actions could be heard by judges specially trained in medical liability matters and who hear only medical liability cases. The AMA developed and adopted health court principles in 2007 to assist state and local governments, insurers, hospitals and other entities interested in exploring this option for medical liability reform.
• Early Disclosure and Compensation Programs. Under an early disclosure and compensation model, providers would be required to notify a patient of an adverse event within a limited period of time. Notification does not constitute an admission of
liability. Providers offering to compensate for injuries in good faith would be provided immunity from liability. Payments for non-economic damages would be based on a defined payment schedule developed by the state in consultation with relevant experts and with the Secretary of Health and Human Services (HHS).
• Administrative Determination of Compensation Model. A state’s administrative entity would be charged with setting a compensation schedule for injuries, resolving claims for injuries, and establishing compensation based on the patient’s net economic loss, subject to periodic payment and offset by collateral payments from sources such as insurance.
• Expert Witness Qualifications. Several states have amended the statutory qualifications for those who may serve as medical expert witnesses at trial. Some states (e.g., Georgia, Texas, and Illinois) have created additional standards that medical expert witnesses must meet in order to ensure the testimony juries receive is presented by an individual with particularized expertise in the matter in question.

The AMA is committed to finding a solution to the challenges of the broken medical liability system, including federal reforms based on proven state solutions like California and Texas as well as alternative liability reforms like health courts. The AMA also supports protecting patients’ access to care by working in concert with
state medical associations to enact and defend strong medical liability reform laws.

Interview with Dr. Calloc’h, of France’s Chambre du Medicine

Interview with Dr. Louis-Jean Calloc’h, Auditeur au Conseil National de l’Ordre des Médecins and Secrétaire-Génèral de l’Association Médicale Française and Director of International Affairs for the Chamber of Medicine of France

In France, “a ‘G-P Specialist’ is a G-P who practices and has a quite exclusive and verified good and permanent practice in general medicine. Not an other not referenced opposed verified practices: homeopathie, acupuncture, psycological-consultations. The others are simply G-P.”

Economic pressure is forcing physicians to become specialists. In the past in France you were able to go to any physician but there became restrictions on access to cost restrictions. The GP is still the gatekeeper. A patient is not allowed to go directly to a cardiologist or other specialist without using the gatekeeper function. This is a recent change.

Training is changing. In the past, it required approximately 8 or nine years of training to become a GP. It took two or three years after that to become a specialist. But now GPs are becoming specialists: I think he’s saying here that a GP can get additional training at the University to get further qualifications. It’s not clear to me the difference between GPs with a traditional training versus true specialists. It sounds like it might be that one becomes a GP specialist in cardiology and therefore sees more patience with party logic problems but they are still not true cardiologist specialists. And they still perform a gatekeeper role before the patients get to the true specialist. It sounds like the GP and the GP specialist both are in charge of handling the ministerial and medical record-keeping work in the system. Keeping the dossier, as Dr. Calloc’h says.

Dr. Calloc’h notes that patients can be put on the list, for example, of diabetics who require more advanced care. These patients can then go see an endocrinologist directly several times a year. There are limits to how many erect visits the patient can get. The idea is apparently to make the primary interface with a primary care physician can not a specialist. He specifically said that specialists such as cardiologist and endocrinologists do not perform primary care functions.

The GP is the person who interfaces with the single-payer entity. The GP also develops a care plan. This plan may specify a number of visits to a specialist. If the patient exceeds the number of visits they then have to pay out of pocket. There is a list of from 20 to 22 diseases that are specifically supposed to be managed with a plan by the GP. He gave several examples including hypertension and diabetes obesity and some others that I didn’t catch. It sounds like these patients that also signed a contract with some details of their management plan including specialist visits. Now here Dr. Calloc’h indicates that a specialists may actually act as a GP for some of these patients. He called it the “Reseau,” which is a kind of managed care contract. The réseau is a contract that the GP or specialist also signed with the single-payer and agrees to manage the patient. The Medical Society, Chambre Du Medicine, seems to be advocating for this approach, but the trade unions do not. The chamber also would rather see multiple players for more competition. It’s not clear to me what the competition would center around.

Dr. Calloc’h: “The “Assurance Maladie or CNAM” is so powerfull in France that, today, there is quite no economique competition with other public or prived medical care insurance. Only one entity to negociate with.”

Trade unions. It took a little while for me to figure this out, but the physicians have trade unions. So, when he was talking about trade unions, he was asked a talking about the physician trade unions who sound to me to be the advocates for the physicians on economic matters. As opposed to the chamber of medicine, whom he represented, who were more the professional watchdogs and ethical watchdogs. For the trade unions, the single-payer is a big problem because there is only one entity to negotiate with. This seems to be why they would like to see multiple payers.

Generally people pay the physician. Poor people get a card to excuse them from payment. If the patient is without means and has complicated multiple illnesses, apparently one has to appeal to the single-payer for credit on the card for more frequent visits etc. For the people who do pay, currently the fee is €22 but this will be rising this coming year. Interestingly, it sounds like the complexity or time of the visit is immaterial. He said a 4 or 5 minute visit gets the same fee is a more complicated visit. However the more you do, such as EKGs or blood work, the fees accumulate. He said something in here about the patient’s then getting reimbursed by the single-payer, but only about €17 for a visit. So this functionally works out to a five euro co-pay. Some patients buy supplementary insurance so that even that small co-pay is taken care of.

He makes the point that GPs are expected to be able to do everything except the most dangerous of procedures. He feels that this is asking too much and that some physicians make the mistake of being too proud and believing that they can do anything. And this is something that the chamber of medicine handles, and it’s role as what we would call a state Board of medicine. France has civil sanctions, administrative sanctions and penal [criminal?] sanctions. The Chamber of Medicine is responsible for the professional sanctioning. It is akin to a state Board of Medicine however it is run from within the profession and not from the state or national government. Complaints can come from patient to patient organizations or from other doctors. Apparently the complainants and lawyer decide whether something can be handled through sanctions or through civil law, which sounds like medical liability action. He says that he feels this is having a chilling effect particularly on young physicians who are now more worried about liability. He also indicates that this is slowing the activity of the Chamber of Medicine because of concerns with the civil liability aspect of the case. So where they might act quickly in the past they now are more circumspect and take more time to make a decision. Dr. Calloc’h feels the France is about 15 years behind where the US is regarding medical liability. He indicates that France now has lawyers who specialize in finding medical liability cases much as we have here in the US.

[Dr. Calloc’h has updated me that he thinks they have nearly caught up due to their new lawyers.]

Half of physicians in France are GPs. There are limited number of specialists. This is due to specific decisions made by the single-payer, apparently. The decision was made that too many specialist made care too costly and that this had to be stopped. Apparently the thinking was that too many doctors led to many prescriptions and too many prescriptions increased the cost of care. “So stupidly, they decided 15 years ago to make the big selection(?)”– not sure if he meant here about cutting training or something else.

And what of the most pressing concerns of physicians under the French system? The pressure of lawyers and prescription restriction. The first is obvious, the second simply refers to pressure to prescribe generics and formulary restrictions on expensive medications. And the patients are specifically asking for the newer, better medication. The single-payer keeps statistics on each physician and they know when you prescribe to many antibiotics for example. They will then send someone out to talk to you. If this keeps happening you can get an administrative sanction. This can then turn into an economic sanction where they single-payer will refuse to reimburse patients for their visits to you. Obviously this is fairly severe. It sounds like much of this takes place in the context of your position neighborhood and what others in your area are prescribing or not.

The Chamber of Medicine is apparently not allowed to advocate politically. Political advocacy therefore takes place either through the universities or the trade unions (and maybe the specialty societies?). There are trade unions for GPs and for specialists also. It sounds like you typically belong to your specialty’s trade union and its academic society.

I will keep updating this as I receive clarifications from Dr. Calloc’h.