WhiteCoat

Healthcare Update — 04-01-2010

Tort reform lessens the risk of medical malpractice, “but it doesn’t change the capriciousness of the legal system … and it hasn’t changed the nature of the risk.” “If there is ANY DELAY AT ALL in the diagnosis of a condition, then they label it as ‘malpractice.'” This Newsweek article explains very succinctly why defensive medicine is real – despite what the American Association for Justice’s mouthpieces would tell you. Ooops. One lawyer in the comment section says defensive medicine is a myth. Oh well. There goes my theory.

It’s not really patient “dumping” — I helped her get out of the car. Florida surgeon cuts wrong duct during gallbladder surgery, then brings patient to another hospital in his own car and drops her off at the emergency department, telling her to inform the staff that she was discharged from the first hospital two days prior. Funny … his hospital notes showed that the patient was feeling better and that he was discharging the patient home. Moron.

Michael Jackson’s heart was still beating when he got to the emergency department. Joe Jackson, Michael Jackson’s father alleges a “cover up” in Jacko’s death. Yeah. The agonal heart rhythm must prove it. Sorry, but I just could never write about celebrities for a living.

The Wisconsin State medical malpractice fund was running a surplus. Then Governor Jim Doyle raided the fund for $200 million to cover some of the state deficits. Now, payments to patients have the fund running at a net negative for the past two years. This year it is $109 million in the hole. Governor’s response: The fund could afford to give up the money – it had a surplus. Next source of state revenues: Children’s piggybanks and the spaces between old ladies’ couch cushions.

Total emergency department visits dropped by 1.3% in 2009. Meanwhile, emergency department visits by Medicaid recipients increased by 6%. When few physicians accept your insurance, where are you supposed to go for treatment of your medical problems?

Should psychotherapists Google their clients? What about Facebook friending? Personally, I think the whole Facebook thing between physicians and patients really crosses the line for a professional relationship. Will patients start disclosing their protected health information on your Facebook wall? Will physicians be hesitant to deny inappropriate requests for prescriptions or requests for medical care out of the office because they don’t want to offend their Facebook “friends”? I stay off of Facebook for just this reason.

Don’t have your heart attack in Nova Scotia on Sunday night or during Monday afternoon. This Nova Scotia emergency department will be closed — due to physician shortages.

Now that health care is all shored up, we can start fixing this country’s legal system. Enter SinglePayerLegal.org. According to the site … half of poor Americans suffer from at least one serious legal problem each year, but 75% of those people have no access to legal care … thousands of innocent working Americans are wrongfully convicted of crimes every year – in part due to negligent or poorly trained lawyers … and the average profit per partner at the most successful law firms was more than $750,000 per year.
I really think we should pass a law about this whole legal mess.
Hat tip to Throckmorton.

Philippine physicians take a mass leave of absence from Philippine General Hospital to “to strongly protest the lack of a democratic process” in selecting hospital director. Hospital staff elected one person for the hospital director and the hospital chose someone else. Now administrators can do the appendectomies.

Houston’s mayor may have priced some retired city employees out of the healthcare market by increasing insurance premium payments by 50%. The city is required to pay for 79% of active employee health care costs, but there is no minimum payment for retirees. Why did the mayor cut retiree benefits? All about the Benjamins – that demographic used the plan far more than active employees or retirees over age 65. The article states that many other cities and states around the country are looking at making similar cuts.

Ten thousand emergency department visits for dental problems in one city in one year. Checkups at a dental office cost $24 per visit. Emergency departments cost $600 per visit (although I’m sure the state actually pays much less than that amount). What does Minnesota’s governor do to help improve the state’s budget crisis? Cut non-emergency dental health services for the state’s Medicaid recipients. No, their cavities won’t miraculously disappear. They’ll just end up in pain in the emergency department with no access to proper dental care. And the state will pay out more money in emergency care than it would have saved by just providing preventative care to begin with.

AT&T, Caterpillar, 3M and other companies are expected to have non-cash earnings that are $14 billion less due to non-cash expenses from the health care bill. Health care benefits paid to retirees are also no longer deductible. How will these changes affect tax revenues and retiree health care?

Mt. Vernon, Illinois hospital implements policy to discourage drug-seeking patients. Allergic to NSAIDS? Looks like you’re getting Extra Strength Tylenol, a pat on the back, and some good wishes for your chronic pain. No narcotics will be given to chronic pain patients. Lost or expired prescriptions for any pain medications will not be refilled.
Why is it that patients never lose prescriptions for their blood pressure medications, anyway?

Given the title of the article, I thought they were talking about me. Nope. The “new dummy” in the emergency department was just a training mannequin.

What are some experts recommending that doctors do after Medicare cuts?
“Doctors may need to think of changing the amount of time they allocate to Medicare patient encounters or limiting the hours per day they can accept Medicare patient appointments. And even with that, you want to handle those times as efficiently as possible … You might decide to see 6 patients an hour instead of 4 and to get the exam rooms turned over more quickly. Or, while it may sound unfair or insensitive, a practice could allocate only a day a week for Medicare patients and move those patients through much faster.”
In other words, “decrease access to Medicare patients.”
Have Medicare? Sorry, only one complaint per appointment. Here’s a referral. Have a nice day.

27 Responses to “Healthcare Update — 04-01-2010”

  1. Matt says:

    “The Wisconsin State medical malpractice fund was running a surplus. Then Governor Jim Doyle raided the fund for $200 million to cover some of the state deficits.”

    But only frivolous malpractice claims cause rates to increase.

    “Tort reform lessens the risk of medical malpractice, “but it doesn’t change the capriciousness of the legal system … and it hasn’t changed the nature of the risk.”

    Perhaps you meant to say “Tort reform lessens the risk of you being held accountable for medical malpractice” – it doesn’t reduce the frequency of malpractice at all. Nice of you to finally admit that your proposed “reform” does nothing to reduce defensive medicine. And to think, it only took three decades of evidence. So will you be voting to repeal it now that it doesn’t do yet another of the things you promise it would – along with increasing access and lowering healthcare costs?

    It’s good to know that Newsweek has gotten to the bottom of this issue by. . . interviewing some lobbyists! Excellent work. Case closed. We can’t trust what the lawyers say on it, but the physician lobbyists are rock solid truth!

    I noticed you didn’t mention this part – I bet we can’t trust Newsweek on this issue: “since every physician I spoke to had horror stories about colleagues happily doing tests and procedures to inflate their billables.”

    Physician greed? Contributing to the cost of healthcare? Say it ain’t so!

  2. Dave says:

    Actually, Matt, the article brought up some of the problems with the current tort system that individual physicians (not lobbyists) have stated in this forum on numerous occasions. And though a lobbyist may have motivations other than an individual, what they say may still be true (isn’t that an ad hominem attack?) Note that caps were barely mentioned.

    • Matt says:

      Dave,

      The article merely repeated many physician complaints, which echo those of their lobbyists and their insurers. I don’t know that this gave their complaints any more or less legitimacy. Opinions remain just that, opinions.

      However, whether caps were mentioned or not, that’s still the centerpiece of every “reform” effort. That’s the proposed solution every time to this apparent problem. So until there is another “solution” put forward, the only point of discussing the “problem” is to push caps. It’s not like these are new complaints by physicians. They don’t like the thought of being defendants – no one does. Physicians have just allowed themselves to be the fact of a movement sponsored by the tobacco industry, so we hear about their complaints more.

      Interestingly, though the article also mentioned that physician overbilling was a problem, few physicians are pushing any “reform” for that.

      • JustADoc says:

        Almost every study done on physician billing shows they significantly underbill as far as E&M coding(the actual office visit and thinking). That has improved some with EMR programs that calculate the correct billing code but still remains an issue. Now as far as overdoing(which is what the article actually discusses(though it may call it overbilling that is an inaccurate description)), that is a problem and many docs lay part of the blame for that on defensive medicine, some on some unethical behavior, and some on having to compensate for the ridiculously low payments for actual thinking.

      • JustADoc says:

        I forgot to include in part of the reasoning for overdoing is patient expectation. They really really really want the CT scan, MRI, etc. Watch and wait is an anthema to many despite that often being the best approach.

      • Matt says:

        I bet you’re right, JustADoc. However, all of those reasons get lumped in as “defensive medicine” and the only cure physicians seem to propose is limiting the rights of malpractice victims.

      • Guiac says:

        Matt – many physicians have advocated for a health care court independant of the standard tort system. This should be done with no(or very limited) caps on damages. I take it we’ve finally convinced you?

      • Matt says:

        Can you point me to this health courts proposal without caps that’s before a legislature?

        As to the concept I really find the constitution to be a worthwhile document and so I’m not inclined to amend it for so few cases. Especially at such a high taxpayer cost.

        However I would be more inclined to do so if physicians would agree to allow all industries to be judged by their own. For example, when physicians sue health insurers the insurers would be judged by other insurance execs. That cool with you?

    • Matt says:

      Dave, as to ad hominem attacks, I don’t know if you noticed this line from WC’s post: “despite what the American Association for Justice’s mouthpieces would tell you. ”

      Apparently we can only trust some mouthpieces, not others. I guess it depends on if they’re YOUR mouthpieces.

      • Guiac says:

        Matt,

        Of course special courts exist for other things right like vaccines?, family courts?, special masters?, etc. I’m not well versed on all the variations but they do exist.

        That said the fact that there is no legislation being proposed for such is because – lawyers oppose it, physicians are unorganized, it is difficult to design/implement as compared with caps on damages which are pretty easy to put into place, and insurance companies which have the most money to spend gain much more from caps than they would from health care courts.

        Just because these views aren’t meeting with legislative action doesn’t mean that people don’t have them – but that the political will simply isn’t enough.

      • Matt says:

        “Of course special courts exist for other things right like vaccines?, family courts?, special masters?, etc. I’m not well versed on all the variations but they do exist.”

        No, there are not special courts for family courts. You don’t get a jury trial, though. But domestic relations isn’t a suit at common law pursuant to the 7th Amendment.

        “Just because these views aren’t meeting with legislative action doesn’t mean that people don’t have them – but that the political will simply isn’t enough.”

        True. But when we talk “tort reform”, that’s what we’re talking about. If you want hypotheticals, that’s fine. I’m a little more focused on the real world.

      • Guiac says:

        So Matt what’s your real world plan to control medical costs?

        I have heard you claim you prefer a free market system but lets admit that’s not real world at this point either. The government is stepping in and cost control is next on the agenda. Defensive medicine does play a role in this – as does patient expectation of workups for unlikely or self-limited diagnoses.

      • Matt says:

        The only way costs will be controlled at this point is if providers change their payment model and deal directly with the consumer. That’s it. All I got for you on cost control.

        As for defensive medicine it’s a lobbying term meaning whatever you want it to mean. There is no reform currently proposed that will reduce it however defined.

  3. Matt says:

    Do you physicians think private insurers will make the same cuts as Medicare in their reimbursement rates?

  4. hashmd says:

    Matt, in many cases it is AUTOMATICALLY tied to the Medicare reimbursement. They just take the RBRVS schedule for Medicare—and then take 5-10-15% off of it.

  5. Dave says:

    So far the only industry that judges its own is the legal profession, which has pretty well shielded themselves from the malpractice standards thay impose on other professions. I would be all in favor of other complex fields (architecture, engineering, aeronautical, etc) being judged by expert panels composed of trained individuals rather than a lay jury. Being a layman in those fields myself, I would hate to be in a position of deciding whether engineering malpractice occurred on a structure, for example. I could not begin to understand the mathematics involved. What’s so wrong with that idea?

    Just because WC has used ad hominem arguments does not make it logical to do so.

    • Matt says:

      Dave, I don’t know where you got that impression. Juries judge attorneys as well. And our malpractice cause of action has essentially the same elements as any other.

      I’m sorry you don’t feel smart enough to be able to understand a concept in those fields. I don’t know that everyone feels so incapable of learning though.

      I see nothing wrong with your idea, other than the Constitution, and the cost. Who would pay for these panels? And why would only those industries get to judge their own? Because you decide all other issues are simple enough for us common folk?

      My argument was not ad hominem. I actually agree with WC – lobbyists statements aren’t worth much. They are going to back whatever group is paying them, and the statistics and reports and surveys they put out and rely on will be shaded in that direction from the start.

  6. Sidebar to the banging club discourse:

    “Why is it that patients never lose prescriptions for their blood pressure medications, anyway?”

    Holla. Or a host of other psychotropics, benzos excluded.

    Just had this convo yesterday with the lead doc. After years of BS and the feds shutting his friends down, looks like he’s finally listening.

    “Life feeds back truth to people in its own time and way.” — James Thurber

    As for the phenomenon of psychotherapists “friending” patients, I can only shake my head in wonder. I have a page to keep up with info sites of interest. AND I DO NOT USE MY REAL NAME. Same goes for Googling, fer chrissake. What, you didn’t get enough in session?

    My field is populated by idiots, entirely too many “helpers” not doing their own work.

    /stepping off soapbox

    Hello, WC. Thanks for the informative post.

  7. Mama On A Budget says:

    “Why is it that patients never lose prescriptions for their blood pressure medications, anyway?”

    For the record, I recently lost my synthroid prescription in a move and had to ask my doctor for a new one. The going rate on that is pretty low, though, I understand =)

  8. Dave says:

    Legal malpractice may be tried by juries, true, but brought by lawyers and presided over by judges who are lawyers. In any case one half the lawyers are “wrong”.

    Over 250 convicted people have been exonerated of their crimes by dna evidence, some of these individuals being sentenced to die. If this were medicine, the prosecuting attorney would be sued for wrongful prosecution and probably lose his license, the defense attorney would be sued for failure to prevent the conviction, and the jury would be sued for an egregious mistake. The victim (you refer to patients who have bad outcomes as victims in your posts, even if the bad outcome is a result of their disease process) would receive enormous compensation for psychological suffering and loss of income (average of about 13 years incarceration per the innocence project). Currently in 36 states they receive NO compensation and are not permitted to sue the state because of “soveriegn immunity”.

    So the legal profession has the same malpractice burdens as the medical profession?

    • Matt says:

      “Legal malpractice may be tried by juries, true, but brought by lawyers and presided over by judges who are lawyer.”

      Not sure how that has anything to do with it. The jury makes the decision as to the malpractice. The judge is the referee on evidentiary decisions. Do you think the attorney for the plaintiff is holding back because the defendant is a lawyer?

      ” If this were medicine, the prosecuting attorney would be sued for wrongful prosecution and probably lose his license, the defense attorney would be sued for failure to prevent the conviction, and the jury would be sued for an egregious mistake.”

      That would be incorrect. However, if you want to move malpractice to the criminal arena, by all means lets do so. Let’s not make it civil damages the penalty, let’s make it jail time.

      ” The victim (you refer to patients who have bad outcomes as victims in your posts, even if the bad outcome is a result of their disease process) ”

      No, I refer to the victim as someone who has an injury as a result of malpractice. You assume the other.

      “So the legal profession has the same malpractice burdens as the medical profession?”

      Yes. You seem to think that a conviction later overturned due to DNA evidence is only the result of prosecutorial misconduct or defense error. Why do you believe this?

      You’re right, agents of the state do have some limited immunity. As do physicians who work for the government. So yes, the legal profession has the same malpractice burdens as the medical profession.

  9. Dave says:

    Tort claims are often filed against the VA. The physicians are named in the suit.

    In a previous post midwest woman tried to distinguish between malpractice and unavoidable bad outcomes. You commented that to the “victims” it didn’t matter. Most bad outcomes are because of bad diseases.

    If my example were a medical case, it wouldn’t matter whether the lawyers had done wrong or not. Even if they had acted perfectly,
    lawsuits would be filed anyway since the outcome was clearly bad. That is what often happens in medical suits. It’s a moot point because the victims in this case can’t sue. My point is that when it comes to the legal profession the rules are different.
    Please tell us why these individuals do not have a constitutional right to sue given that they have been severely harmed by the legal system.

    • Matt says:

      Tort claims are filed against the VA, however you’re doing it through the FTCA, which has significant liability limits.

      With regard to midwest woman’s comment, if I said that I misspoke. You’re a malpractice victim only if malpractice is the cause of your injury.

      ” It’s a moot point because the victims in this case can’t sue. My point is that when it comes to the legal profession the rules are different.”

      You keep saying this, but you keep being wrong. The elements are the same to prevail in both. I’m not sure that you have to have an expert as often in legal malpractice, so it’s actually easier to pursue that.

      You may be confusing suing with prevailing. The point of a lawsuit is to gather the facts and determine if there is liability. If there is, then the damages are determined. There is no more hurdle to file a legal malpractice claim than a medical malpractice claim. In fact, it’s MORE difficult to file the med mal claim in many states as some require a pre-suit affidavit from a physician.

      I can’t answer your last question because it’s based on a false premise. There is a right to pursue a legal malpractice claim.

      Are you referring to a wrongful conviction case? In that situation, who are you wanting to sue? Defense lawyer, Prosecutor, jurors?

  10. Dave says:

    It is my understanding that some states have passed laws compensating wrongfully convicted people, usually $15,000 to $50,000 per year of incarceration, but other states have not, and that in those states the individual cannot sue the state without the state’s permission, owing to soveriegn immunity. My own state offers educational access as compensation. Sounds pretty paltry to me.
    And yes, if this were treated as a medical case, I’m pretty sure both attorneys would be sued.
    Perhaps my understanding of this issue is wrong. Are you saying that wrongfully convicted people exonerated by DNA evidence have the right to sue for compensation in every state? I might be misinformed – my information comes from public defender and innocence project websites.

    • Matt says:

      I agree with you, the compensation when you sue a govt entity is pretty slim.

      And no, both attorneys would not be sued. You could conceivably sue your own attorney for ineffective assistance, but simply being wrongfully convicted isn’t evidence of that, just like a bad outcome isn’t necessarily malpractice so you might not prevail.

      Or, if you can show some active misconduct on the prosecutor like knowingly withholding evidence you could conceivably make a claim there. Although I think those are mutually exclusive claim.

      But it may be that you were just mistakenly convicted by the jury. Or maybe new technology has come out which exonerates you that didn’t exist then.

      Where I think you’re getting off base may be mixing criminal law v. civil law. A malpractice claim is a civil claim – ie, you’re suing for money damages (generally). A criminal action is the state prosecuting someone with a penalty of incarceration. There are no money damages, other than restitution, for example.

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