Malpractice

HEALTH POLITICS: A Fresh Look at Malpractice

Joanne Kenen — Fri, 20 Nov 2009 16:46:00 -0500

Over the past year or so, we began detecting some subtle changes in how Democrats were talking about malpractice. They weren't embracing the Republican tort reform agenda, weren't about to start limiting damages and saying "Sorry Charlie" to people who had suffered heartbreaking harm. But they weren't just changing the subject either. They were recognizing a problem, and considering solutions. Liability problems as well as larger obstacles to addressing serious patient safety problems.

We posted about it a few times (here and here). I started reading more about it, and I started talking (and listening) to what doctors had to say. Not just lobbyists for doctors, but doctors. Including some progressive docs in primary care who favor health reform or a single payer system. I have a piece online in American Prospect today, outlining some alternatives to traditional malpractice lawsuits that are worth trying. (Not to replace the current court system, but to test alternatives. And while we test alternative dispute resolution or other approaches, it should be voluntary.) One of my conclusions was that malpractice is getting in the way of all sorts of other things we need to do to fix our system. Getting in the way politically and economically. And getting in the way of some of the changes we need to make to create a system that is safer, evidence-based, and less wasteful. Some doctors will resist changes to the system -- because change is hard, or change is something that they don't think applies to them, or, for some doctors in some settings, change can sock them in the wallet. Getting the malpractice piece out of the way, or at least minimizing it a bit, may remove the legal smokescreens and let us get to the heart of the change resistance.

The CBO recently did its first estimate on the price of defensive medicine. I left out that figure from this article because it was based quite specifically on potential savings from Republican legislation ($11 billion a year). I don't think there is an agreed upon overall estimate that defensive medicine in the current system costs -- to federal health programs, the privately-insured, the doctors. But for readers who want a summary of some of the recent literature on this, Factcheck.org has a good wrap.

The approaches I mentioned -- health courts, "disclose and apologize" and certificates of merit -- aren't the only ideas floating around. As we do more comparative effectiveness research, and learn more about what doctors should be doing and why or why not, we may be able to weave more "safe harbors" into the legal system. Right now, as all the current confusion about prostate screenings and mammograms illustrates, we still have a lot of trouble agreeing on and comprehending best practices.

In the near future, we're going to post a bit more on patient safety (which we wrote about the other day) and have a bit more to say on the AMA's evolving views on malpractice and health reform. For now, we're going back to watching the Senate....

HEALTH POLITICS: Dick Armey On Making the Health Care Problem Go Away (Pretend It Isn't There)

Joanne Kenen — Tue, 10 Nov 2009 16:48:00 -0500

Health bloggers were so busy linking to David Leonhardt's excellent New York Times Magazine piece on the lessons about cost and quality drawn from Intermountain Healthcare that we nearly overlooked another piece in the magazine -- a profile of conservative activist Dick Armey -- that tells another, more alarming, story about the politics and ideology of health reform.

Armey and FreedomWorks had a hand in the angry and chaotic town hall meetings of last summer. (Freedomworks isn't the same as the Tea Party, but they overlap.) And health care, for Armey, isn't just about health or care. It's a vehicle for the rise of the right. The economic conservative far right. The right that wants to stop government in its tracks. Or shrink it. The right that believes the American way is all about the rights of individuals, not the needs of community. And of course, the "rights" of individuals have to do with things like the flat tax, not health coverage. The right to health care, however, doesn't seem to figure in here too much.

(Here's an essay I did recently for the Hastings Center on how health policy becomes a proxy for politics. Len Nichols wrote on values and health care here. For Len's discussion of why Thomas Jefferson, whom Len in his inimitable way labeled an "evidence-based" kind of guy, would regard health coverage as an American value, listen to him and Hastings president Tom Murray talk about health care and values on NPR's "Science Friday" here.)

Michael Sokolove, the author of the NYT piece, reported that back in 1994, during the Clinton health care debate, Armey told The Washington Post: "Health care happens to be the play they called. They're the offense. We're the defense." For Armey, the defense means advancing the cause of small government by stopping new Washington initiatives in their tracks.

Sokolove writes:

What makes Armey an effective advocate is how he uses his status as a learned professor and a plain-spoken man to deliver the message his audiences want to believe: that various Democratic initiatives are not just wrongheaded policy but also flagrant violations of the Constitution and affronts to traditional American values. In his telling, the Constitution is elevated to something like a sacred religious text, written by Christian believers, possibly divinely inspired and intended to be read in the most literal way. It contains solutions to any civic problem faced by modern Americans, including those brought about by the tangled health care system...

Armey prides himself on his intellect and rationality, but his years in Washington have taught him the political uses of irrationality and even outright fantasy. He told me he does not believe some of the most extreme charges that emerged in the debate over health care reform -- for example, that "death panels" will tell elderly people when it's time to die -- but he welcomes the energy and passion that such beliefs bring to his side. "You know that expression: The enemy of my enemy is my friend?" he asked. "Are their fears exaggerated? Yeah, probably. But are Obama's promises exaggerated? I may think it's silly, but if people want to believe that," he said, referring to death panels, "it's O.K. with me."

Armey minimizes both the depth of our nation's health care problems and the ease of fixing them. In his view, tort reform -- limiting malpractice awards even to those patients who suffer true and grievous injury -- would solve much of the problem by reducing overtreatment. Apparently his economics training excluded understanding the role of payment incentives on how our health system works. He also argues that if he went to the doctor -- which apparently he doesn't -- he would get MRIs without asking for them because he is a big shot and doctors are afraid of being sued by big shots.

In keeping with his conservative and libertarian spirit, Armey thinks all the plans for health reform cost too much and are too intrusive because they have mandates. If there's a health care crisis in America, he views it as a minor one that can be addressed with free-market remedies like allowing people to buy insurance across state lines. (As we've told you several times, this form of deregulation is not going to solve our problems.) Armey professes compassion for people who truly go without essential health care, and agrees that we need to help them. But he solves the bulk of that problem by saying that most of the 47 million uninsured and 25 million underinsured just don't exist, or they don't realize that they already have more insurance than they need.

"We are a wealthy nation, and there is not much reason that I can justify for anybody who lives within our borders doing without essential health care, and I'm happy to tell you that very few people do," he said. "If there's 15 percent who are in that category, then let's construct a 15 percent solution so they can have it. To me, that's a wonderfully generous act."

What about the millions of Americans, I asked, who have insurance but find that the rising premiums and deductibles are eating away at any financial gains they might otherwise make? "The largest empirical problem we have in health care today is too many people are too overinsured," he said.

He also somehow managed to both declare victory -- a technical knockout against the Democrats -- while admitting that he thinks they will pass a bill, albeit not quite as big a bill as they originally hoped. (He thinks they will try to work more on our health system in the future. Fine with us.)

If Armey's views seem disconnected from how many Americans experience health care, one reason could be that Armey himself has very little recent personal exposure to the system. Like many American men, he avoids doctors and said he has not seen one in many years. "I've been very fortunate, very healthy," he said, "so why change up what I've been doing?" He equates medical care with unpleasantness. "What happens to old folks, and I'm 69, is they get prodded and poked and picked on. They run a camera up your behind. If these things are medically necessary, I will adhere to them. But don't make me go through them for your comfort. Medicine is supposed to be for my safety, not yours."

Of course Armey doesn't even seem to be willing to credit Democrats for seeing any value in health care itself. It's not about uninsured kids. It's not about people who can't pay for their chemo. It's not even about getting rid of antiquated and wasteful ways of treating the elderly in Medicare. It's all about power, he argues, economic and political. "The first and most pernicious goal of this whole health care push by the Democrats is their desire to control a major sector of the American economy," he said. "Pure and simple, it's power."

HEALTH CARE: CBO's Latest Tort Reform (GOP Style) Savings Estimates

Allison Levy — Wed, 14 Oct 2009 17:06:00 -0400

When there's health reform smoke, there's tort reform fire. Or something like that.

Senator Orrin Hatch (R-Utah) requested that the Congressional Budget Office update its analysis of how certain (GOP) tort reform proposals could affect annual health care spending. The updated CBO numbers are greater than 2008 estimates (page 21 of that long report) -- when CBO found that lowering premiums for medical liability insurance would reduce annual national health care expenditure by 0.2 percent. The impact tort reform would have on annual health care spending remains a controversial matter. And of course how to define and achieve malpractice reform is also in dispute.

In the updated study, the CBO included not only direct savings from anticipated lower premiums for medical liability insurance but -- this time around -- also included indirect savings from the reduced utilization of health care services (i.e. defensive medicine). Recent research, CBO explains, indicate that tort reform does decrease the use of health care services. (They previously chose not to include the effects of defensive medicine in their analysis as research generated inconsistent results.) It is very difficult to tease out how much of what we can regard as unnecessary care is defensive medicine, versus other financial incentives -- or just how some doctors practice medicine.

The CBO analysis states that enacting medical malpractice reforms would save Medicare, Medicaid and other federal programs $41 billion over the next 10 years while also raising an additional $13 billion in federal income taxes. Total medical malpractice reforms would reduce the federal deficit by $54 billion over the next 10 years and decrease annual expenditure on health care by 0.5 percent -- or $11 billion in 2009. (The 0.5 figure includes the direct reduction in spending due to lower liability premiums plus lower utilization.) The CBO estimate assumes that some potential savings have already been achieved since several states have already applied many of the reforms considered in the analysis.

In response to the CBO analysis, Sen. Hatch stated:

"I think this response from the CBO confirms that there is a growing problem regarding the costs of health care lawsuits. In years past, the CBO mainly focused on the cost [of] doctors' malpractice insurance premiums and did not adequately address the tendency of doctors to use ‘defensive medicine,' which does little to promote patient health and services only to help doctors avoid being sued. Think that this is an important step in the right direction and these numbers show that this problem deserves more than lip service from policy-makers."

My colleagues at New America -- like President Obama himself -- have argued in the past (here and here) that it's time to think about creative ways of breaking the long political impasse on malpractice. Not because it's a magic bullet for health costs -- it's clearly not, as the CBO shows, although we are in the every-billion-counts stage. Not because we favor arbitrary caps on patients that have been truly injured -- we don't. But we do think there are bipartisan alternatives that will go hand in hand with efforts to make health care more efficient, to improve (rather than impede) patient safety, care, quality -- and also, to encourage physicians to be a partner as we innovate and experiment with ways to change our health care system for the better.

HEALTH REFORM: Obama Makes Case for (Creative) Malpractice Solutions

Joanne Kenen — Tue, 15 Sep 2009 14:03:00 -0400

We weren't surprised to hear President Obama back some kind of malpractice reform. As we wrote in back in July 2008 , in March of this year, and in more detail this past July, Obama and key Democrats were sending just that signal to physicians' groups. Exactly what shape (or shapes) malpractice reform will take is not yet clear. But Obama emphasized on "60 Minutes" this Sunday that he is no fan of the strict limits on damages that Republicans have proposed repeatedly for many years -- and which have always been shot down in Congress even when Republicans had the majority.

PRESIDENT OBAMA:

Tort reform. That's not something that historically has been popular in -- in my party. But on Wednesday I specifically said that I think we can work together on a bipartisan basis to do something to reduce defensive medicine. Where doctors are worrying about lawsuits instead of worrying about patient care.

STEVE KROFT:

If it came down to getting this plan passed would you be willing to do more in the area of tort reform and malpractice insurance? Would you be willing to -- to agree to caps, for example, on -- on malpractice judgments?

PRESIDENT OBAMA:

You -- you know what I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care. So far the evidence I've seen is that caps will not do that. But there are a range of ideas that are out there, offered by doctors' organizations like the AMA, that I think we can explore.

Our colleague Julie Barnes is a lawyer, and we hope she finds time to delve into this issue. In the meantime, some quick thoughts on why this may be good politics, a useful tool for easing doctors' acceptance of changes in how we deliver care, and in helping us address some barriers to patient safety and quality improvement. You can also read that July post, where we looked at some of this. (In that post, we also note that the costs of malpractice and defensive medicine, though hotly debated, are not a big piece of the overall health spending pie. However, we do need all the savings we can muster if we are going to cover the uninsured, and in some parts of the country and for some specialties, including emergency medicine, obstetrics, and surgery, getting malpractice insurance is a real problem).

Politics:

This is good politics, as it lets Obama basically say that he is listening to the other side and addressing their priorities. The Republicans have been saying for years that if you cap malpractice damages, you solve a lot of the health costs problem. Now the Dems can come back and say, "We are tackling malpractice." Given the current political climate, we expect a lot of Republicans may counter -- but you aren't solving it our way. (Indeed, some are already saying that. ) Actually the Bush administration, while pushing for caps, also looked at other approaches. As the Washington Post's Amy Goldstein recently reported, the Bush administration had proposed experiments on "disclose and apologize" models. Doctors disclose the error and apologize, and both parties go to mediation when warranted. Obama and Hillary Clinton had outlined a similar approach in 2006.

Doctors:

The AMA, long an advocate of caps and a foe of reform, appears to have softened its stance on what constitutes malpractice reform. Various documents and position papers and statements still call for relief from malpractice costs -- but they aren't drawing lines in the sand about hard caps on damages. For instance, one pro-reform AMA policy paper says it wants reform that "eases the crushing weight of medical liability and insurance company bureaucracy." It goes on to say, "It's time for results, not rhetoric. It's time to shift our focus from arguing about differences to working together to resolve them."

As we've said approximately 40 zillion times, to restrain health care costs, we need different incentives and different payment and delivery models. That means doctors are going to have to accept changes. Experts don't agree on how much "defensive medicine" contributes to our surfeit of tests and procedures and overtreatment, but addressing the malpractice issue will help peel back that argument ("I have to order unnecessary tests to protect myself legally") and help us tease out how much is defensive medicine, how much is practice patterns (doctors in a given community doing things a certain way because doctors in that community have always done things that way) and how much is because it means doctors make more money (some of which then goes to pay their malpractice insurance...)

Quality and Equity:

An incentive for Democrats to want to tackle malpractice is that the system as it now stands is an obstacle to creating a "culture of safety" in medicine. The best way to stop mistakes is to acknowledge them, analyze them, learn from them -- and see what in the system (not just errors by individuals) allows mistakes to be made over and over again. Hard to do that if you are hiding errors to avoid a lawsuit.

The current system also isn't terribly equitable or efficient.

According to research on malpractice, less than one in seven patients who are actually injured by negligence file a claim; and only one in six claims that are filed actually involve negligence. It can take five or 10 years to settle a case, and then more than half the payouts go to administrative and legal costs, not the injured patient. It is not a model system. In addition, people who have been injured -- but not severely enough to produce big, juicy damages -- may have trouble getting a lawyer to take their case on contingency. In short, some kind of voluntary alternative dispute resolution (health courts -- although there are a lot of ways to design health courts -- safe harbor defenses, disclose and apologize programs) might actually help people who are injured more than the current system. And injured parties, after all, are who the malpractice system is supposed to protect or compensate in the first place.

HEALTH CARE: In Malpractice Debate, Perception Counts

Joanne Kenen — Thu, 02 Jul 2009 17:59:00 -0400

Put President Obama and a U.S. physician in a room (or in a virtual room as the case may be) and chances are, the talk will turn to malpractice costs.

You can make—and many have—the argument that rhetoric and perception aside, malpractice costs don't add much to the overall health bill, a percent or two. (Although at a time when we're looking for all the savings we can get in the health system, one or two percent can add up in a $2.2 trillion system).

But rhetoric and perception do matter. Politically, addressing malpractice could get an obstacle to reform out of the way—-both from doctors who are truly convinced malpractice is really The Big Problem With the System, as well as from anti-reform forces who would rather inflate the malpractice issue than look at all the things wrong with the status quo.

In terms of perception—if we address doctors' concerns (and some well-intentioned, even progressive pro-reform, doctors sincerely believe that the threat of malpractice lawsuits is distorting the practice and cost of medicine no matter what the CBO says)—maybe it will be easier, both in raw politics and in changing attitudes, to get doctors on board for all the changes we need to make in health care in this country. That includes rethinking the delivery and payment system, which will require adjustments from doctors, and a frank look at the rate of medical errors, how to reduce them, and finding a fair way of helping the victims. Right now, we aren't systematically addressing the root causes of errors, nor are we necessarily compensating those that have been worst hurt. According to Brandeis research on malpractice, less than one in seven patients who are actually injured by negligence file a claim; and only one in six claims that are filed actually involve negligence. It can take five or 10 years to settle a case, and then more than half the payouts go to administrative and legal costs, not the injured patient. It is not a model system.

Obama isn't about to embrace caps on damages. Challenged at the Virginia health care town hall about caps by Texas Republican Rep. Michael Burgess, a physician, and in his recent AMA speech, Obama explained that he opposes them. They are arbitrary, they aren't a good answer for people who suffer egregious harm. On their own, they also don't solve the problem, which is more complex than flaws in the tort system. When Burgess talked about the success of caps in Texas, Obama swiftly parried: Tell that to McAllen, Texas. On top of all that, caps aren't going to happen; Congress, even when controlled by Republicans, has rejected them time and again.

But what Obama signaled to the AMA was an acknowledgment that this matters to them, and that he was willing to reach out and consider new solutions, not just recycle old partisan stalemates. Some were surprised. We weren't. When Tom Daschle spoke about health policy here at New America last year, we noted his openness to some kind of malpractice solution, possibly health courts. Presidential adviser Zeke Emanuel, a physician, addressed the AMA a few months ago in D.C. and told them he understood their concerns and that malpractice was part of the policy mix. Researching this post, we came across a New England Journal of Medicine essay dating back to 2006 jointly authored by no other than Obama and Hillary Clinton. They were working together in the Senate at the time on legislation that would use disclosure, apology, and settlement as an alternative to bitter litigation.

Health CEOs for Health Reform, a group we've been working with, wants a federal task force to move us toward a "safe harbor" for clinicians following best practices. (See page 12 of their white paper) A recent New England Journal of Medicine Perspective essay lists all of these options—safe harbors, health courts, disclosure programs—as worthy of consideration.

Obama said he wants to help doctors reduce liability and fear of lawsuits when "they haven't done anything wrong, where they perform effectively." He also wants someone who gets a surgical sponge left in their belly to have redress.

Overall, he told his town meeting, he believes that reforming our health care system "is the best way for you to keep the care you've got." Reforming the malpractice system may also be the best way for doctors to give us the care we need.

VOICES OF REFORM: Daschle on Health Care and the Global Economy

Joanne Kenen — Thu, 31 Jul 2008 16:36:00 -0400

Former Senate Majority Leader Tom Daschle spoke to a full house at New America yesterday about how our rising health care costs are hurting U.S. global competitiveness. (See our issue brief on health and the global economy here.) We blogged about Daschle and his health policy book "Critical" just days after we started this blog in March but a few things have changed since then. For starters, back in March, it was still primary season. Now we have an Obama-McCain race. As Daschle, an Obama adviser, pointed out, both candidates are talking about health care, and that's good. "This problem has to be addressed," Daschle said. But he cautioned that it won't happen without sustained leadership from the next president, whichever team wins. Daschle was the second-ranking Democratic leader in the Senate during the 1993-94 health reform debates, and he knows all too well what happens when the White House and Congress lose their focus or get distracted by other problems or crises. Once the momentum slows down, it's hard to recover.

Like us, Daschle sees cost, quality and coverage as inextricably linked. Although Obama has not endorsed mandates, Daschle didn't back off his belief that they will be needed (he didn't specify precisely when) to bring everyone into the system, although he shared Obama's concern that health insurance costs must be brought down and subsidies must be adequate for a mandate to work. Other solutions he put forth—more Health IT to help reduce medical errors and cut down the high administrative costs of our system; payment reforms so we stop rewarding quantity of tests and procedures and instead pay for treatment of an episode of disease or an injury; more transparency throughout the health-care system; another look at drug pricing; more prevention, and better treatment and management of chronic disease. We liked the geometric example he used. If you think of health care as a pyramid, with wellness and prevention as the broad base and high tech options like heart transplants at the narrow point, most countries start at the base and work up until the money runs out. In the U.S. we do the reverse.

Each time we hear Daschle, we're struck by how he departs albeit in modest ways from what on Capitol Hill would still be the party orthodoxy. A few months ago, he gave a fairly nuanced assessment of the Medicare prescription drug program. It was largely designed by Republicans and there are many things that Daschle would have done differently (in fact, he tried for years to do them differently) or would still change in a heartbeat if he could. But he also acknowledged that the program, however flawed, was doing more than he had expected to help people get their drugs. Yesterday he spoke about the need to address physicians' concerns about malpractice and defensive medicine, and put forth the idea of Health Courts that would avoid a lot of the current litigation problems but still make sure that injured patients were protected and compensated. It's not a brand new idea, but it hasn't had much traction, so it will be interesting to see if it gains any with a prominent Democrat like Daschle talking it up.

Daschle is a veteran of enough health care wars to know how hard it is to get from here to there, idealistic enough to want to try again, and pragmatic enough to know not to repeat the mistakes of 1994. He likes to quote Nelson Mandela, a hero of his: "Many things seem impossible until they are done."

IN THE STATES: Pennsylvania County Tries Talking Instead of Suing

Joanne Kenen — Tue, 04 Mar 2008 15:41:00 -0500

Malpractice reform has an honored place on the long list of health issues that Congress remains stalemated on, year in and year out. There are legitimate disagreements about the extent of the problem and how to address it -- and there are some political advantages in keeping malpractice reform on the political "red meat" menu. [slideshow] Encouraging more mediation and arbitration (instead of more lawsuits) has some appeal on both sides of the spectrum, but it hasn't gotten a lot of federal traction. One county in Pennsylvania has begun a pilot program. By teaming up doctors and lawyers to work together to resolve disputes amicably and putting the patient's interests first, hospitals hope to reduce patient anxiety, improve safety by addressing errors, and potentially cut costs. Here's an interesting account in the Philadelphia Inquirer.