March 20th, 2013

Sen. Rob Portman, Gay Rights, and Tort “Reform”

RobPortmanLast week Ohio Senator Rob Portman made headlines when he reversed his stance on gay marriage. For a Republican, that was pretty big news. He did it after finding out his son was gay and reflecting on the meaning of love, marriage and religion.

But that isn’t why I’m writing.

I’m writing because, in his explanation, he went beyond the love/marriage/religion elements to reflect on the proper role of government in society. He wrote:

British Prime Minister David Cameron has said he supports allowing gay couples to marry because he is a conservative, not in spite of it. I feel the same way. We conservatives believe in personal liberty and minimal government interference in people’s lives.

So if he, as a conservative, believes in minimal government interference in people’s lives, why does he campaign on giving big government protections and immunities with various tort “reform” proposals that close the courthouse doors to those seeking justice?

One of the first things he did as a freshman senator in 2011 was introduce legislation that would impose a new statute of limitations on medical liability lawsuits and cap punitive and noneconomic damages.

His political view is summarized here:

Medical malpractice costs and the mounting costs of defensive medicine must be reduced through sensible legal reform and better health information.
Source: www.robportman.com/1on-the-issues (11/22/2010)

Really Senator? Is that what limited government is all about? Interceding on the rights of people seeking justice by protecting big business and insurance companies?

If someone would be kind enough to forward this to Portman, he might also learn that the artificial caps he supports because of “defensive medicine” have been proven by empirical evidence to be a complete bust. Health care costs in Texas, which instituted artificial one-size-fits-all caps in 2003 didn’t go down. Costs have actually gone up.

So Portman gets a special twofer: His tort “reform” policy contradicts his stance on federal power, and the basis of his policy is factually wrong.

If Portman wants to reign in federal power, as he states in part of his argument favoring gay rights, he may wish to revisit his other positions that call for increasing that power. Especially when increasing it fails to support  his theories.

More on the hypocrisy between conservatism and tort reform  here: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

 

 

March 7th, 2013

The Bogus “Risk of the Procedure” Defense

Law-Medicine-773369With great regularity I hear people write off bad medical outcomes as simply a “risk of the procedure.” It happened again today in an email from a company that helps lawyers find medical-legal experts. One of their experts wrote:

A 52 year old woman presented to Hospital and underwent a total hysterectomy. The surgeon perforated her bladder during the procedure….

…The question is whether perforation of the bladder is a known risk of the surgery and, if so, are there ever instances where it is nonetheless a breach in the standard of care?

That is wrong, wrong, wrong, 1,000x wrong. That is not how to frame the question.

And you can appreciate that it is framed wrong if you simply substitute a car accident for the medical procedure. Isn’t getting into an accident a known risk of driving in a car?

The fact that something is a known risk is a game that defense lawyers play. It does not simply absolve a defendant.

But the real question that a jury gets is whether the injury could have been avoided with the exercise of reasonable care. So an auto wreck may be a known risk of driving in a car, or it may not.

An example: You drive on the highway and a deer leaps out of the woods into the path of your car. This may be unavoidable even with reasonable care. Or the deer may have been standing in that spot for 20 seconds but you were busy texting while driving and didn’t see it.

It isn’t any different in medicine, and those magic words “known risk of the procedure” should set off alarm bells. Is having a sponge left behind after surgery a known risk? Yes it is. But it is also negligent because someone wasn’t keeping track of all that went into the body to make sure that all came out.

A doctor might, or might not, have been negligent in the way treatment was rendered, but the fact that something is a “known risk” doesn’t answer the question.

If you ask the wrong question, you might be lead to wrong conclusions.

 

December 20th, 2012

Oprah Winfrey, Diane Sawyer and My X-Rays

This is a story of two famous women, and a bunch of x-rays that hang in my office. Both wanted to use them on their shows as examples of surgical equipment that had been left behind. One of the films is to the right, and the others on my web site.

A few years ago I received an email from the Oprah Winfrey show. It seemed that some guy named Dr. Oz wanted to use those x-rays for a show on medical mistakes.

Sure, I said, you can use them, so long as you give me credit so that these don’t disappear into the public domain. Interested parties should know their original source. Thus started the most ludicrous negotiation I’ve ever had in my life on any subject. After a few dozen emails over several weeks, they successfully overlawyered the issue to death and they never saw the light of day on the almighty Oprah show.

I confess that, when I finally wrote As Seen On Oprah! (Kinda, Sorta, Almost) I had a lot of fun. More fun than should be legal, perhaps. It never got much in the way of pageviews, but it’s always been one of my favorites.

So this afternoon I get a call from a producer from Diane Sawyer for ABC News. They also want to use the x-rays for show on medical mistakes.

We consummated a deal in about a minute. You can see the clip here as my films have their 15 nanoseconds of fame and glory.

Two different media divas; two different ways of handling a routine matter.

 

August 2nd, 2012

New York’s Medical Malpractice Crisis (Huh? Where did it go?)

Senator John DeFrancisco (Republican, Syracuse)

Since I’ve twice hit the subject of “defensive medicine” in the last couple weeks — doctors claiming to do extra procedures out of fear of being sued — I thought it would be a good time to update the state of the medical malpractice crisis in New York. OK, I didn’t really think of this on my own as a time to update. I got a press release on the subject. And while I don’t generally act as a distributor of press releases, this one seems to be particularly important.

The author is New York State Senator John DeFrancisco (Republican, Syracuse). He is currently the powerful chairman of the Senate Finance Committee and was formerly the chair of the Judiciary Committee.

And guess what? The “crisis” doesn’t exist.  Without further ado, a brief press release from today:

STATEMENT FROM SENATOR DeFRANCISCO
This year’s modest malpractice insurance increases confirm that there is no malpractice crisis in New York State.

Malpractice costs have been rising more slowly than overall medical inflation in recent years, and the number of malpractice cases filed has gone down in every successive year since 2007.  Today, New York has the fourth most doctors per resident of any state, and continues to graduate many of the nation’s new physicians every year.

Given the improving financial outlook of Physicians’ Reciprocal Insurers and the record $1.2 billion surplus that Medical Liability Mutual Insurance Company  recorded last year, significant increases in malpractice insurance costs are unlikely in the years to come.  In fact, even today’s modest increases may have been unnecessary.

Moreover, numerous studies have shown that malpractice costs can be dramatically reduced by implementing safety programs that protect patients and reduce preventable medical mistakes before they happen.

 

August 1st, 2012

Sanjay Gupta Gets It Wrong

In an op-ed in today’s New York Times (More Treatment, More Mistakes), Dr. Sanjay Gupta argues that we currently face a crisis of about 200,000 people dying each year from medical mistakes. In doing so, Dr. Gupta — a neurosurgeon and chief medical correspondent for CNN — says that many of the injuries and deaths come from too many tests and procedures.

He cites a few war stories to support his theory about too many tests — and injuries/deaths that come from the treatments or misdiagnosis. But that is not the part that I take issue with.

This is the problematic part: Dr. Gupta claims that the reason too many tests are ordered are, you guessed it, “defensive medicine” because doctors fear lawyers and lawsuits. The problem is not with the medical community, he says, but the legal one.  He writes:

Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not. In a recent anonymous survey, orthopedic surgeons said 24% of the tests they ordered were medically unnecessary. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.

I take issue with that last part I put in bold. Actually, it isn’t just that I take issue with it, but that it flies directly in the face of empirical data. It seems to be accepted wisdom in the medical community that lawyers are to blame for increased costs (and now, increased injuries and death). I noted this exact same issue a couple weeks ago when Florida doctor Lee S. Gross made similar comments to his local paper.

Given that the medical community has a long and rich history of doing research to improve medicine, you would think that, when research challenges accepted wisdom, that the community would sit up and take notice.

As I noted to Dr. Gross, when Texas implemented medical malpractice “reform” back in 2003 that capped pain and suffering awards at $250,000, the expectation was that there would be fewer lawsuits (that part worked), more doctors coming to Texas (that part failed) and lower medical costs (also a failure). The reason for fewer lawsuits, of course, is that medical malpractice cases are so difficult, expensive and risky to bring, that lawyers can’t afford to take smaller suits.

If you chop out the significant issue of pain and suffering, you are left with economic loss. And if the patient makes just a modest living, that economic loss component would also be low. Lawyers won’t take the cases because lawyers also have mortgages to pay and offices to run. It’s basic economics. The victim is left in the cold looking at the closed courthouse door.

Now back to the studies I just referenced. The actual data in one study showed that:

There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform.

And the data from a second study showed that so called “defensive medicine” continued even after patient rights had been eviscerated. In fact, medical expenses went up 13% faster than the national average.

There are really only three potential reasons for Dr. Gupta’s theory of too much testing.

  1. Doctors get reimbursed for each test they do, so there is a financial interest in over-ordering tests;
  2. Doctors simply want to look under every rock in the search for what ails the patient;
  3. Doctors have heard so much about lawsuits, that they order extra tests to protect themselves (i.e. defensive medicine).

The problem here is that 2 and 3 above seem to be conflated by many, that being fear for the patient and fear of the patient. If the Texas Malpractice Experiment is a failure in controlling costs and encouraging doctors to move to Texas, then the problem has to be either the financial interest or the desire to do good. But let’s not confuse the desire to do good with “defensive medicine” to protect against lawsuits. Because the empirical data has shot that theory down.

Don’t blame lawsuits for more testing and more deaths from unnecessary treatments. Gutting the Texas malpractice system did not reduce medical costs and tests. The problem lies within the medical community.

[Updated — More on this from Max Kennerly:  Atul Gawande Versus Sanjay Gupta On Defensive Medicine]