Obama’s Un-reform of Healthcare will mean Medicaid for All

Government in Healthcare is the Problem – not the Solution – as

Thriving Free Market Solutions Already Exist

A Doctor’s Diagnosis and Treatment Plan: Five Part Series

Charles J. Willey, M.D., General Internal Medicine

St. Louis and Festus, Missouri

Part II: Medical Lawsuit Abuse

Lawsuit abuse against health care professionals drives up health care costs by 20 to 40%, diminishes quality of patient care through defensive clinical decisions, and limits access to doctors who are avoiding liability.  Congress’s Un-Reform proposals not only fail to manage this problem, but make it worse.  Free market and simple state government regulatory solutions to lawsuit abuse have been successful in some states.  There are efficient ways to strengthen provider performance while fairly compensating victims for true malpractice and keeping health care costs down.

The current state of our medical legal system can be captured in the following ad recently on a billboard over the highway between my two offices: “There are no inadvertent outcomes in healthcare, only mistakes. Call the XYZ Law Firm at xxx-xxxx…” This ad is shockingly dishonest.  As a matter of fact, doctors and other health care providers work every day knowing that death is an inevitable fact of life – remember the old adage, “death and taxes?”  Illness is nearly as certain. Neither results necessarily from a “mistake.”

Conversely, scholarly estimates show that 50% of our illnesses are self-induced, either by behaviors of commission or omission, such as smoking, obesity, alcohol, drug abuse, lack of exercise or personal care, failing to take necessary medicines, etc. Regardless, trial lawyers profiteer and drive up the costs of health care by the mere allegation of malpractice in cases with an adverse outcome, whether self-induced or because of an act of God.

The current legal system is rigged in favor of those who know and can manipulate the legal process.  They force cases to friendly judges, prevent codefendants from collaboration,  stop experienced professionals  who understand complex medical cases from sitting on the jury, and instead use professional witnesses as “experts” who ‘testify to order’ and block details  of the doctor’s decision process to create the appearance of deficiency.  Medical Malpractice attorneys sue frequently, often without cause, as a veritable ‘shakedown’, looking for quick settlements before they have to invest in the case and invoking empathy from a jury that is often manipulated into monetary awards, regardless of fault.   Many insurance companies settle to fix their costs, regardless of guilt; doctors often follow because the cost in dollars, time away from patients, and emotional duress is so great.  The trial lawyer knows his lawsuit can cause a doctor and advocates to spend upwards of $30,000 for liability defense before the plaintiff’s attorney has to spend even $5,000.

Health care costs further swell with distorted monetary judgments, which provide well beyond redress for an injury.  The lawyer will deduct his fees before taking his 40% contingency.  In cases resolved with lower judgments, little is left for the patient.  Often the judgment, correct or not, settled or not, marks the doctor and entire healthcare market region with higher insurance premiums to come.

The result is a system that is so biased toward guilt that it creates a legal feeding frenzy, running up the costs of health care. As the cost of liability increases with unfounded judgements and expensive professional liability insurance policies purchased by health care professionals, so does the cost of health care for us all. It doesn’t serve the legitimately harmed patient, the physicians, the health care system, or the patient-doctor relationship. In fact, it harms them all.

Doctors and health professionals are on constant defense. Many clinically proficient physicians, who spend sleepless nights and weekends with ill patients, feel betrayed by the unfairness of  the high liability risks of their profession; as a result, they seldom leave a test unordered, no matter how remote the possibility of a positive result.  Physicians are continually wary of the next lawsuit, usually unfounded.   This reaction is universal among health care providers.

The defensive over-ordering of tests to prevent frivolous lawsuits is now sadly a well-engrained necessity of medical life.  Estimates range from 20 to 40% increased overall costs of health care because of defensive medicine.  In addition, the quality of health care declines, because doctors see patients more quickly and order more tests but have less time to help patients manage their lifestyles and health care in a way that can keep them healthy.   The result is rapid, more superficial encounters, which decrease healthcare quality and service.

Sadly, doctors are forced to change their clinical behavior to avoid or share liability. In the introductory article, we discussed the case of “Joe” who presented to the emergency room with chest pain.  Every encounter in the emergency room (ER) is a new one; there is no standing relationship or prior knowledge of patient history.  ER docs are overwhelmed with patients without a primary care physician who are often presenting in ever-increasing numbers for non-urgent issues.  Even though“Joe’s” pain is typical of rib or lung lining inflammation, ER docs feel compelled to order tests to screen for heart attack.   Testing Troponin levels, designed to more precisely differentiate heart attack from other causes of chest pain, is over-ordered often as a liability defense. Troponin is so sensitive that its very high percentage of false positives leads to admissions and further testing (even though otherwise unnecessary). Troponin has become a rapid way to distribute patients into the hospital to share liability with the admitting physician and or the cardiologist.

The current system of “criminalizing” adverse outcomes continues to force physicians to over-order tests because lawyers respect test results more than evidence-based clinical judgment.  Consultations among doctors are now over- ordered merely to give weight to clinical judgment and to share the liability. The unintended consequences are unnecessary costs and patient discomfort.  This is all too common in most areas of medical care … increased hassle, increased costs, all to avoid the unfair legal monster.

Similarly, the standard of performance for doctors has become immediacy and perfection, regardless of how neglectful or self-abusive a patient has been.  Health professionals recognize that patient illness resulting from a lifetime of unhealthy or abusive behavior like smoking often yields grave outcomes, yet in medical liability cases, the doctor can be found liable for injury based on a technical decision, such as the timing of a CAT scan that in fact had no real impact on the patient outcome.

Consider the case of the 38 year old alcoholic, driving without a license due to three DUIs, who sustains a compound fracture of the right femur, fractured spine, and ruptured spleen in a drunk driving car crash.  Three surgeons perform emergency surgery using numerous transfusions to replace and stop bleeding, and repair all the fractures, remove the ruptured spleen, and save his life.  The cast on his leg and his coma (from high ammonia due to alcoholic cirrhosis of the liver, not the accident) conceal the right leg weakness until some hours after surgery.  Surgery the next day evacuates the blood collection that compressed the spinal cord.  Six weeks later, he walks out of the hospital with a leg brace and sues all involved for delayed diagnosis regarding the permanently weak leg.  He and his lawyer split several hundred thousand dollars in settlement, effectively rewarding his behavior.  Since the patient didn’t have insurance and was not working, the doctors are not paid for either their heroic work at 3 o’clock that morning or the six weeks of daily care.  What else could his doctors have done to achieve perfection? Nothing.

The continuous threat of frivolous lawsuit has very serious adverse effects on the patient-doctor relationship.  It engenders mistrust by the patient and embitters and demoralizes the physician.  A patient-doctor relationship without trust is less effective in achieving the best health result, impedes proper motivation to improve patient health, and is more costly due to the need for even more defensive testing.

There is nothing in the current Un-reform proposals to curtail the deleterious effects of lawsuit abuse on our health care system. Incredibly, there are provisions that will make the problem worse, since politicians drafting our health care bills are beholden to trial lawyers as major political donors.   Yes, the bills sets up a $50 million grant to help states “find alternative systems” for professional liability reform, BUT it states specifically that if a state limits lawyers’ fees or caps damage awards, they will not be eligible for the grant. The Senate Bill invites State attorneys general to sue regarding noncompliance with any provisions of the bill by any provider or patient, and allows them to engage and share contingency awards with private law firms.

Un-Reform worsens an already destructive system. There is a better way.

A number of States have modeled successful professional liability reforms, Missouri and Texas among them.  These States limit non-economic damages such as punitive damages, immeasurable pain and suffering, or loss of consortioum awards, require a pre-trial affidavit of merit from a practicing physician of the specialty of the defendant physician, prevent venue shopping, and preclude physician apologies from being construed as admissions of guilt. In these States, true malpractice cases can proceed fairly; frivolous ones are much less frequent.

Does this hurt the trial attorneys? Yes. Does it protect the patient-doctor relationship, fairly compensate victims, and reduce healthcare costs? Yes.

We know this because previously doctors fled these states, but now their numbers are increasing, as are the number of competing professional liability insurance carriers, while insurance premiums in these states have stabilized.

Some further lawsuit abuse reforms would substantially improve the process. Let’s enact a “loser pays” system; this would stop frivolous lawsuits cold. Let’s require that some jurors are truly the PHYSICIAN’S “peers”; they would weed out the junk cases, and actually be harsher than a typical jury with cases of true negligence and serial malpractice. Additionally, let’s exclude the cost of care in the damage award calculation if the medical bills are already paid by the patient’s medical insurance.

Even in reform States, the current system of “criminalizing” adverse outcomes continues to force physicians to over-order tests because lawyers respect test results well more than evidence-based clinical judgment.  Consultations among doctors are now over- ordered merely to give weight to clinical judgment and to share the liability.  Presently this behavior is so engrained that what we need a systematic overhaul to create substantial change and save the costs of these unnecessary defensive expenses.

In addition to already successful reforms in some States, and because the trial attorneys are already  bringing cases that they believe will establish precedent to undo these reforms, we should create a separate Medical Court, similar to those operative in other highly technical areas, such as Tax Courts and Bankruptcy Courts.  Medical Courts judges would be deeply experienced in highly technical medical decisions, procedures and professional standards. These Medical Courts would advance correct judgments and awards in malpractice cases, eliminate the cronyism and corruption which plagues the state and local personal liability court system … and would be the optimum for keeping health care costs down and quality high.

Creating an injured patients’ compensation fund would more fairly distribute reparations.  Established by a surcharge on health insurance premiums, as well as by a premium paid by each healthcare provider and supplier, the fund would be administered by a panel of medical experts including practicing physicians, nurses, health law attorneys, Medical Court judges, business owners and patient advocates, charged with creating standard criterion to value awards fairly and consistently. Safeguards to prevent it from corruption should be built in. This team could be charged with recording medical trends (such as increasingly prevalent infections) and recommend systematic interventions, with proliferating quality performance measures and reporting on provider’s scores on those measures.

This uncomplicated and straightforward system would foster self-reporting of problems, systematically reducing them, and ensure that all those deserving would be appropriately compensated. It would prevent the current egregious extortion, profiteering, and criminalization of otherwise legitimate medical decision-making. It would decrease or eliminate defensive testing and referrals.

In the end, current legal abuse reforms and some regulatory reforms would strengthen the quality of the patient-doctor relationship and substantially shrink health care costs. Any health care reform should start and end with these priorities.  Un-reform does not.