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:

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]


July 19th, 2012

Sorry, Dr. Gross, But You’re Wrong (Florida Malpractice Proposal)

In an opinion piece today in the Tampa Tribune, Dr. Lee S. Gross, treasurer of a local county Medical Society and president of the Florida chapter of Docs4PatientCare, advocates replacing the current medical liability system with a type of worker compensation system.

Dr. Gross’s argument, in a nutshell, goes like this:

By eliminating the fear of being sued, the wedge between patients and physicians will be removed, allowing doctors to choose the best health care for their patients. Fewer unnecessary tests and procedures will result in decreased health care costs for individuals, employers and state and federal governments.

The problem with this argument? It’s already been debunked by studies. The biggest study I know of is Texas, which turned itself into a lab study by eviscerating patient rights in 2003 by capping pain and suffering awards at $250,000. Since medical malpractice cases are so difficult to bring and expensive to prosecute, this effectively gave a big helping of immunity to the medical community.

The Texas logic in doing this? That by closing the courthouse door more doctors would come to Texas, whose population was swelling.

And the Texas experiment has now been shown to be a failure. It gave protections and immunities but didn’t do what it was intended to do. I wrote about this two months ago (Study Says Texas Medical Malpractice Tort “Reform” Is A Bust (Is Congress Listening?)), and you can read that post if you want more, but this is the summary:

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

But that wasn’t the only failure of the Texas Malpractice Experiment. It also failed to control costs. Since Florida’s Dr. Gross thinks reform will cut costs in Florida by eliminating “defensive medicine” tests, it’s worth noting that a different study showed Texas medical costs rose 13% more than the national average after its “reforms” were put in place. The problem, it seems, is that doctors get paid to do those so-called defensive tests.

While it is certainly possible that some docs at some points may practice defensive medicine, the real problem is that costs go up when you have a fee for service system.

And so, if you think that destroying the medical liability system in Florida is likely to lead to lower costs, there is an uphill fight because the data says otherwise. Will doctors make more money? Yes, they will. That happens when income stays the same and expenses (malpractice insurance) goes down. But it won’t help those injured by malpractice who will bear the burden of the injuries and it won’t help lower medical costs. What it really means, is that those injured will have to fight in an administrative forum for compensation, instead of a judicial forum, and do so for compensation that does not make them whole.

And last, a final note of irony: Dr. Gross, as I noted at the top, is part of an advocacy group called Docs4PatientCare. They oppose big government intervention in the healthcare system. Except, I guess, when the big government intervention is to help give them immunities and protections and increase their profits. Then, it seems, it is A-OK.


May 9th, 2012

Study Says Texas Medical Malpractice Tort “Reform” Is A Bust (Is Congress Listening?)

I’ve written before about the savage Texas medical malpractice “reform” that was implemented in 2003 and its inherent injustice. The premise was that if the state capped pain and suffering awards at $250,000 for doctors (no matter how many were liable) and $250,000 for hospitals, it would encourage more doctors to practice medicine in Texas. The cap was nominal, meaning it was not adjusted for inflation, so it remains at that stagnated level.

Now there is a study that debunks the premise of that so-called reform. And even tort “reformer” Ted Frank agrees that the report is so damning that he will no longer cite Texas for the proposition that such reforms will lead to an increase in doctors in the state.

The report is exceptionally damning to those who argued that providing protections and immunities to negligent doctors would bring more doctors to Texas (though I’ve often wondered what kind of doctors they were looking to bring in with that logic). The summary:

Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim.

That is a big, fat ouch for those that have supported government protections for tortfeasors.

The $250,000 cap that was enacted back in 2003 did have some affect, of course. It cut down medical malpractice payments by 70% and premiums by 50%. But this wasn’t the reason for the changes in the law, since claim payouts had been stable for the preceding decade. But claims will clearly drop under such circumstances as cases are difficult and expensive to bring, and if it isn’t a economically viable to bring the suits, lawyers won’t take them. It isn’t easy to risk tens of thousands of dollars of your own money and hundreds of hours over many years if the case isn’t substantial enough. The rent still has to get paid, as does the secretary, and the lights need to be kept on.

But did the 70% drop in payouts bring the flood of doctors? You would think so according to the initial reports (including from the New York Times) that looked at the increase in licenses being issued. According to the report:

Proponents argued that physicians were fleeing Texas because of lawsuit risk and high insurance premiums, but would stop leaving if the state adopted the reforms. After the reforms took effect proponents asserted that the reforms brought new physicians to the state in droves – a more impressive result than they originally predicted, which was only that doctors already in Texas would stay put.

But using data from 2003 up until 2010, the authors conclude:

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

The evidence has been brewing. In 2007, four years after reform, the Texas Observer ran a piece discussing the nonsense that was sold to voters by the insurance industry to get the bill passed, claiming that “doctors were fleeing Texas, leaving scores of counties with no obstetricians to deliver babies, no neurologists or orthopedic surgeons to tend to the ill.” This wasn’t true.

Also from the Observer, to get that bill passed Gov. Rick Perry and his minions from the Texas Medical Association argued in a flier mailed out in English and Spanish and posted in waiting rooms around the state that:

‘152 counties in Texas now have no obstetrician. Wide swaths of Texas have no neurosurgeon or orthopedic surgeon. … The primary culprit for this crisis is an explosion in awards for non-economic (pain and suffering) damages in liability lawsuits.’

Doctors to deliver your babies or lawsuits, they argued, which would you like? And you know what? Four years after the “reforms” were passed there were still 152 rural counties without an obstetrician. Because it seems that doctors, like many other professionals, happen to like living in urban areas.

The reports of an increase in doctors attributable to tort “reform” that came out, and are often echoed in Congress by advocates of establishing federal standards over the state tort systems, have not been accurate. The authors attribute this to the fact that the number of doctors going to Texas was rising before 2003 (as was the population as a whole), that researchers at universities should not be counted as they are unaffected by the issue, and that there was an increase in medical care after Hurricane Katrina in 2005 as people relocated.

And finally, the statistics showing an increase in doctors was based on new licenses being issued. But that didn’t take into account those that left the state or had retired. You can’t just count docs entering Texas healthcare without also accounting for exiting docs if you want to figure out whether the net population is increasing or decreasing. According to the authors, “using the number of licenses granted as a measure of the “success” of tort reform is potentially very misleading.”

The fact that the physician population was increasing before the “reforms” and continued to increase at the same rate after the “reforms” is very telling. The authors write, “There was neither an exodus before reform, nor a dramatic increase after reform.” How damning is this report? The authors go on to write about those who made the claims for “reform”:

When making the case for lawsuit restrictions and when claiming enormous post-reform success, the identified speakers made statements that were false. And, not just garden variety false, but “liar, liar, pants on fire” false.

And that my friends, is a whole lot of false.

The report is filled with facts and figures that shows that in the post-reform era, Texas has actually done worse at attracting doctors then the rest of the nation. Not better. And not even the same.

I end on this note: As I type, Republicans in Congress (it is always those that claim they want limited government that do this) seek to expand federal power and put nationwide damage caps in place. One of the prime reasons is that were used in Texas. And those that were used in Texas have now been debunked.

(P.S.   For those that want to shift the argument to arguing that such reforms will lower health care costs, well, it doesn’t do that either. I covered that last year here:  The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas).


New Study Crushes Key Claim in Federal Medmal Debate (Andrew Cochran)

Did You Know… Medical Malpractice Lawsuits Are Declining? (Brett Emison)



March 14th, 2012

House GOP Again Attempts Federal Power-Grab On Medical Malpractice Lawsuits

House Republicans like to claim that they believe in shrinking the power of the federal government and making sure that states retain the rights they were given in the Bill of Rights under the Tenth Amendment.

But that, apparently, is only what they say, not what they do. As I sit at my keyboard, Republicans are once again hypocritically attempting to subvert the power of states to make their own laws when negligent conduct by doctors injures patients. In a vote set for next week, the House is to decide on a bill that would, in part, cut a rationing board that could force Medicare cuts without congressional approval.  This board is the infamous (and mis-named) “death panels” that Sarah Palin tried to conjure up the debate over health care.

Because this cut would increase federal expenditures, the GOP figures it would take the opportunity to jump on a long-favorite subject of theirs: Granting federal protections and immunities to the medical profession when their negligence causes injuries to patients, under the guise of calling these cuts in federal funding. This would override state tort laws. Their touted theory is that, if there are less concerns about lawsuits, there will be less “preventive medicine.”

They call this tort “reform,” but we call it what it really is, a payback to the massive insurance-healthcare conglomerate that supplies so much cash to the Republican party. There is no other explanation, since the act of seizing more federal power and subverting state laws runs directly contrary to conservative political theory. Even conservative theorists agree. But the House Republicans are elected officials, and political theory takes a back seat for many of them to something vastly more important: Money.

It’s also worth noting that cutting the rights of people who have been injured does not decrease Medicare expenditures. They tried this trick in Texas, and they found that costs escalated even faster than they went up elsewhere. See: The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas).

Is this a good time for me to say, “I told you so?” Back in January 2011, when the Republicans took control of the House, their first order of business was to read the Constitution, and pledge to defend it. At that time, I wrote:

But will Republicans really follow the Constitution when it comes to tort “reform?” My bet is no, based on a history of Republicans trying to limit consumer access to the courts. One academic favored by the right wing, Richard Epstein, arrogantly refers to the constitutional right to a civil jury trial as a “procedural feature.”

So there you have it. The Republicans are once again trumpeting tort “reform” despite the fact that it violates their own political theory of smaller federal government, despite that it grants protections to those that injure others due to negligence instead of holding them accountable, and despite the fact that it doesn’t actually do what they want it to do.

See also: House Attack on ‘Death Panel’ Doubly Hypocritical (Jay Bookman @ Atlanta Journal Constitution)