I’m sure that this post will get lambasted by the plaintiff’s attorneys out there, but the third thing that we have to do to improve the House of Medicine is:

Enact Liability Reform

I don’t think that anyone could create a convincing argument that physicians are NOT afraid of legal liability. What’s the big deal?

The problem is this: Even if physicians practice “good” medicine, they’re a bad outcome away from losing their life savings. We do our best to help someone and if a plaintiff’s attorney can get a expert to testify (or “testi-lie” as the comedian Gallagher calls it) that the bad outcome wouldn’t have happened were it not for that idiot physician, we’re screwed. Doesn’t matter if 78 other experts have reviewed the record and say that the care was appropriate. In the courtroom you can’t have 78 experts testify because the other side would argue that the evidence is “cumulative.” In the court, it looks like a “close call” every time. One expert testifies for the plaintiff, the other testifies for the defendant. Who to believe?

Don’t take this post as an assertion that all medical care is “perfect,” either. I know it isn’t. The question is … how do you differentiate “good” from “bad” in a reliable and reproducible manner? Right now our system isn’t doing a very good job.

So how do physicians respond? Without a bad outcome, there can’t be a lawsuit, so physicians do everything possible to prevent the bad outcome – even if the bad outcome is exceedingly rare. In everyday language, that concept is called “Defensive Medicine.” I couldn’t find the numbers for the estimated cost of defensive medicine each year in the US, but this AARP article states that $500 billion to $700 billion each year is spent on “unnecessary” medical care in the United States every year.
The more “risk aversion” that physicians have, the more likely that they will practice defensive medicine.
Defensive medicine doesn’t just involve spending more – it also involves getting less. Doctors are less willing to perform high-risk procedures when they practice defensive medicine. If you need brain surgery or are delivering a child in areas that are highly litigious, you are probably going to have a harder time finding someone willing to treat you. Maybe you’ll have to travel several hours for your routine exams. Or maybe you’ll die before you can be transported to the proper subspecialist in an emergency. I’ve seen it happen before.
Read more about defensive medicine at places like Kevin MD, Overlawyered, the Wall Street Journal Health Blog, Movin’ Meat, and Boston.com.

It isn’t just the lawyers that health providers fear. The fear of liability also extends to the professional arena. Providers are afraid of getting dinged by the government or by credentialing agencies. Hospitals don’t want to get stuck paying for a “never event.” Many of us don’t even know what a “never event” is, but word of mouth is that our buddy’s urologist said his hospital is making a big deal out of them. It sounds bad and you don’t want one to happen to you, so don’t do anything that will cause a never event.
Despite the fact that never events are a money saving and not a “quality” issue, hospitals do what it takes to avoid being accused of tyranny by allowing a never event to occur. To prove that someone didn’t come in with a “never event,” now everyone gets cultured up the wazoo and we spend tons of extra money doing it. All the extra money spent trying to “disprove” the “never event” is less money spent on basic health care for those who cannot afford it. Think about that. The health care spending pie isn’t getting any bigger. Money spent screening for never events is probably taking care away from the poor patients who need it most.
I’ve written a few prior posts about “never events” here, here, and here if you have the interest.
Outside agencies also micromanage providers into doing things that are deemed “quality” health care – even when there is evidence that the quality measures may cause harm. For example, according to the government, we are not performing “quality” medical care if we do not perform blood cultures before giving antibiotics for pneumonia – even though doing so rarely alters treatment and significantly increases costs. Similarly, we’re chided for providing less than quality care if we don’t give beta-blockers on arrival with patients suffering from a myocardial infarction – even though there are no studies showing that beta blockers on arrival improve outcomes and one study showing potential harm from giving beta blockers on arrival.

Given some of this background, here are a few suggestions I have – in no particular order:

Require regulating agencies to go through the peer review process before enacting “safety goals” or “quality standards.”
Force JCAHO and CMS to publish studies in medical journals conclusively proving the utility of their directives before the directives can be enacted. Piling standard after standard upon medical practitioners without any evidence that the standards actually do what they are supposed to do is killing medicine.
Medications are routinely pulled from the market because follow up studies cannot show effectiveness (remember children’s cold medications?), yet “safety goals” that make care worse in this country are blindly followed simply because some agency whose primary goal is to keep itself in existence tells us to do it.
Why do doctors follow science yet we allow regulatory agencies to follow “smoke and mirrors”?

Convert to a “loser pays” tort system.
There are a lot of articles you can find on “loser pays.” Here’s one of the better ones by Walter Olson (founder of Overlawyered.com) and David Bernstein. Most other countries in the world use some form of a “loser pays” system (are there any that don’t?) Why is it that the United States is so far behind the curve?

Change the threshold of liability.
Instead of proving that a doctor was negligent, litigants would have to prove that a doctor was “grossly negligent” – that the doctor did something that resulted in a “high likelihood” of harm. States like Tennessee and Georgia (ED physicians) already have this standard. Would some physicians get away with malpractice? Absolutely. But there would be a lot more physicians willing to provide services to high risk patients if they didn’t fear that they were constantly at risk for losing their life savings.
Sovereign immunity is the law of the land. Can’t sue the government unless it lets you do so under the Tort Claims Act. What will happen if everyone loses the right to sue physicians as “government actors” if “national” health care is enacted?
I suppose that there are a lot of lawyers who cringe at the idea of immunity. Granting medical providers immunity would throw everyone’s legal rights out the window, right? No profession should have immunity for their actions, should they? Funny. Judges have complete immunity for their actions. No one even questions the concept of “judicial immunity” any more. One quote I found here showed why the US Supreme Court feels that judicial immunity is important:

To render a judge liable to answer in damages to every litigant who feels aggrieved during the course of judicial proceedings, “would destroy that independence without which no judiciary can be either respectable or useful.” Bradley, 80 U.S. (13 Wall.) at 347.

It is OK for a judge to be grossly negligent and wholly biased in their duties. Litigants have no recourse whatsoever. The judges are immune from liability. At some point our nation is going to have to decide whether poor access to care, long waits for care and declining overall health is preferable to tort reform.

Remove the ability to sue medical providers for “failure to diagnose.”
Billions of dollars are spent trying to rule out the very small possibility of a potential disease, even though almost all logic points somewhere else. Whenever there is a misdiagnosis, physician intuition and education are trumped by diagnostic testing. Many expect physicians to be “perfect.” For those that disagree with this last statement, leave a comment telling me all the things that it is “OK” for a physician to be wrong about.

With the increasing popularity of medical tourism, it seems that consumers are willing to forgo their ability to sue providers when the medical care they receive is more reasonably priced. This article in the San Francisco Chronicle shows that patients can receive same or similar care at foreign hospitals for 25% of the cost in American hospitals, despite the warnings from the AMA that there is “a lack of legal recourse in case of medical malpractice” and that “doctor and hospital credentialing makes medical trips potentially dangerous.” Despite all our malpractice “protections” and credentialing, care in the United States ranked 37th out of all the countries in a World Health Organization white paper and we were next to last when compared with other countries in a Commonwealth Fund survey.

Medical tourism is the “free market” in action. By engaging in “medical tourism,” patients give up the right to be seen by a physician who has jumped through all the “paper hoops” to get “credentialed” and give up many rights to legal recourse in the case of medical malpractice. In exchange, the patients get medical care at a significantly reduced rate. As the article shows, Third World nations are responding by building lavish medical facilities in which to treat the foreigners. If you build them, they will come.

I’m open to other ideas. These are just a few that need to be vetted. I’m sure there will be a lot of discussion about them.

Bring it on.