Covert Rationing Makes Malpractice Reform A Bad Idea

Posted on May 9, 2008
Filed Under General Rationing Issues, Medical malpractice |

Our friend Kevin Pho was undoubtedly correct when he pointed out in his recent op-ed in USA Today that arbitrary and unrestrained medical malpractice lawsuits are a blight on our healthcare system. The always-looming threat of malpractice suits elicits expensive and wasteful defensive behaviors from doctors and hospitals, and is a major source of physician frustration. Almost everyone except the trial lawyers (and their minions in the various federal and state legislatures) understand that medical malpractice is in dire need of reform.

So it deeply pains DrRich to say that significant malpractice reform at this juncture is a bad idea, certainly for patients, and in truth even for the medical profession.

Realizing that he has just alienated at least the estimated 60% of his readership who are of the medical persuasion, DrRich hastens to assure one and all that he is second to none when it comes to despising lawyers. Consider:

1) DrRich’s initial baptism by trial lawyer occurred right after he entered practice as a general internist 30 years ago. During his very first month of practice, he wrote a refill prescription for a patient whose own doctor was unavailable. Two years later he was named in a malpractice suit, alleging that he had written this prescription incorrectly. It turned out that the patient was not harmed by the medication (her suit was for another issue entirely, involving another doctor), and it also turned out that DrRich had written the prescription correctly in the first place. But it took a full 18 (nerve wracking) months of legal maneuvering to acquire a copy of the prescription from the plaintiff’s attorney, during which time DrRich was pressured to “settle” (he did not settle), and after which the suit against him was summarily dropped. Fortunately this has been DrRich’s only direct encounter with a malpractice suit, but unfortunately it was not his only encounter with lawyerly ethics.

2) Eighteen years later, by this time a professor of medicine and a cardiac electrophysiologist (hey - if you’re going to specialize, specialize!), DrRich was ensnared in one of the federal government’s very first major dragnets aimed at healthcare “fraud.” DrRich was, of course, completely and demonstrably innocent of all allegations. But proving his innocence required him to endure a severely prolonged, difficult and frightening ordeal, highlighted by an actual show trial before Congress (replete with masked, voice-altered witnesses). You can read the whole incredible tale here. (Memo to the Office of the Inspector General: Just kidding, you guys are great. Thanks for the memories.) It was this experience that prodded DrRich to finally ask himself what the heck was going on, and that ultimately led him to discover the Grand Unification Theory of Healthcare. (As a catalyst for discovering universal truths, DrRich has concluded, it would be far easier just to have an apple fall on your head.)

3) Then, another 10 years later, after DrRich had left the practice of medicine altogether to become a consultant and writer (which he had hoped would be a less hazardous venue), an attorney who was suing a big biotech company leaked to the New York Times a memo DrRich had written as a consultant to that company. The NY Times immediately made DrRich’s memo the subject of a major article that proved quite embarrassing (though inappropriately so) to the company. You can read the Times article here. Subpoenas immediately began raining down on DrRich from all directions, and his life once again needlessly became a circus of depositions and other legal maneuverings. DrRich will be happy to tell you all the details of this episode once he’s sure it’s all over, which at this moment he’s not.

All of this is simply to demonstrate that DrRich has earned his lawyer-despising chops the hard way. His numerous and oft-painful encounters with attorneys, during his long and varied career, have left DrRich more than a little sympathetic with the likes of Dick the Butcher, the cutthroat in Shakespeare’s Henry VI, who said, “The first thing we do, let’s kill all the lawyers.”*

So: If you’ve waded through this confession of faith, you can plainly see that DrRich is no friend to lawyers, and would like nothing better than to climb onto the malpractice-reform bandwagon, there to join his colleagues in demanding an end to the waste, intimidation, heartache and expense brought on by the systematic abuse of medical malpractice suits.

But alas, to his unending regret he cannot.

The reason he cannot, of course, is covert rationing.

A central goal of covert rationing is to make physicians answerable, above all, to one or more central authorities (whether the government or mega-insurance companies) rather than to their patients. The litany, to refresh everyone’s memory, goes like this:

In a thousand ways, covert rationing leads directly to the destruction of the classic doctor-patient relationship, a relationship formerly revered and sanctified by law, tradition and ethics, in which the primary responsibility of the doctor was for the welfare of his/her individual patient.

Turning the physician’s efforts away from individual patients and towards the good of the whole (”good of the whole” as defined by guideline-creating groups and other policy-making bodies whose output can be easily influenced by central authorities) has become a major emphasis of today’s healthcare system. Accordingly, the death of the classic doctor-patient relationship has been decreed by Congress, supported by medical ethicists, upheld by the U.S. Supreme Court, and incorporated into guideline-directed routine medical practice. It is being taught to young doctors today from the outset, many of whom seem to regard the old notion that every patient should be evaluated and treated as a unique individual as anachronistic and inefficient.

When physicians abandon the classic doctor-patient relationship, even though it’s through coercion, they abandon what defines them as professionals. It diminishes doctors to a stature no higher than that of pieceworkers, who get paid by the procedure or by the completed checklist. It is the loss of this innate professional purpose, DrRich believes, which accounts for the greatest part of the frustration being expressed by physicians today.

For patients, the loss of the classic doctor-patient relationship - losing their one and only true advocate, whose job it is to take their part within an adversarial healthcare system - is a threat to more than mere professional pride or purpose. It is a threat to life and limb. Patients are left to their own devices, alone, abandoned, and marginalized in hostile territory, their ostensible Guides distracted by their own needs (and indeed, perhaps no more reliable than so many Gollums).

Consider the implications of the malpractice system to patients in such an environment. In a healthcare system where physicians are being urged, cajoled, threatened, incented and coerced to practice medicine to some statistical mean and not to the individual, and where the “mean” to which they are supposed to aspire is determined by central authorities mad with the need to covertly ration care, the only real leverage patients retain is the implied threat to sue doctors who fail to address their individual needs. The threat of malpractice litigation, as wasteful and counterproductive as it is, provides at least some degree of balance in the doctor-patient encounter, and gives doctors (even those whose professional pride has been successfully eroded by all the many efforts aimed at doing just that) a good reason to always ask themselves, “Is this action I’m about to take the action that THIS patient really needs me to take?”

And in a distressingly sad way, because the threat of litigation may cause some doctors to ask this question more often than the central authorities would like them to, the specter of malpractice suits may even, to some small degree, help to uphold medical professionalism. And at least to this tiny extent the threat of lawsuit, in the long run, may be beneficial to doctors.

There’s more. The malpractice travesty, as bad as it is, is at best a distraction. It distracts physicians from focusing on the main event, from that which is really destroying their profession. For once you destroy the doctor-patient relationship you leave the medical profession adrift and rudderless, buffeted by the four winds and capricious currents. You leave it subject to a gathering host of oppressors, with their decrees and directives that in earlier days would have been dismissed as beneath consideration. You leave it defenseless against encroachment from groups with far less training and expertise, but who can also do the piecework, fill out the checklists, follow the guidelines, and who have the government-sanctioned certificates to prove it.

In the face of all this, for doctors to focus exclusively or even primarily on malpractice reform - which, all niceties aside, will in some fundamental way further limit the prerogatives of their abandoned patients - is perhaps worse than merely a distraction. It is a complete capitulation. It is a plea not for the restoration of their profession, but instead for mere consistency, to force the plaintiffs’ attorneys to recognize, as the doctors themselves have done, that the standards of care have been formally diminished, that it is not fair to hold doctors to a standard in a court of law that they are enjoined from achieving in the clinic. It is an acknowledgment that the classic doctor-patient relationship, that which defines medicine as a true profession and not just a trade, is dead and gone and is not coming back.

If doctors will extricate themselves from a system in which they are working primarily for the government and insurers instead of for their patients; if they will reinvent styles of medical practice in which they can give primacy to their individual patients instead of to the payers; then at last we all will be morally obligated to insist on fundamental malpractice reform. But as long as doctors allow themselves to practice in an environment that systematically disenfranchises and marginalizes their patients, no reform should be supported or even permitted that will push patients farther into the margins.

DrRich has tried mightily during this past year to illustrate how covert rationing always leads to inefficiency, waste, inequity, destruction - and absurdity. That it can turn an utter travesty like our current state of malpractice litigation into something we ought to refrain from vigorously reforming is, perhaps, the most absurd result of covert rationing we have seen yet.

* Attorneys themselves famously insist that Shakespeare was actually paying them a compliment by putting these words in Dick’s mouth. What the Bard actually meant, they theorize, is that before any violent overthrow of a civil government can be effected, one first must eliminate the protectors of society, namely, the lawyers. But prithee! (Olde English for “Give me a break!”) Leave it to the self-serving lawyers to so completely twist a context as crystal clear as the one in which this line appears. Dick the Butcher, quite undeniably, was simply enumerating just one more delight - the premier one at that - to add to the veritable garden of delights that would become theirs once he and his gang took over. And anyone who says otherwise is either a member of the legal profession, or someone disgustingly sympathetic to it. Which (he is taking very great pains to point out), DrRich is not.

Comments

11 Responses to “Covert Rationing Makes Malpractice Reform A Bad Idea”

  1. Louis Siegel, M.D., B.S.E.E. on May 9th, 2008 6:32 pm

    Dr. Rich,

    I enjoyed reading your views of the necessity of the ‘malpractice noose’ being forever just within reach of the physician’s neck in order to provide behavioral limits on the physician and comfort and control to the ever litiginous patient.

    Having retired from amost thirty years of practicing internal medicine and thereby enjoying the thrill of being sued for standing still, I tend to disagree with your views.

    The term ‘malpractice’ is itself disagreeable and generally incorrect when applied to the effusive volume of ‘malpractice’ claims made upon the, leagally speaking, ’sitting duck’ physician.

    The better term is medical liability, and medical liability insurance, as the term ‘malpractice’ is summary judgement of guilty before proven innocent.

    Physicians can, and are, sued for frivolous and reckless allegations.

    The horror and nightmare is that the allegations themselves become embedded in to the record and incorporated into whatever legal findings are made.

    A patient’s physician who is sued because his patient claims “his pneumonia led to resection of a lobe of his lung”, when this never happened at all, will find reported upon settlement or judgement that “his pneumonia led to resection of a lobe of his lung”,

    What good does that do anyone, Dr. Rich?

    A litiginous practice environment sets the stage for unatural physician behavior, a legally-armed patient, and a lopsided exam room setting.

    No, no good has come from the legal impotence of physicians and the neutered strength of organizations that pretend to protect them.

    When we relinguished the right, when the right was taken from us because we were too busy serving the infirm, to charge for our services we gave up any notion of being a profession, but what is worse we abandoned our responsibilities to our patients.

    I believe what is good for doctors is good for patients. Patients are no, longer under our stewardship. Therein is the ‘malpractice’, patient abandonment.

    Like to hear from you.

    Louis Siegel, M.D.
    strategies for surviving healthcare@
    likeadoctorinthefamily.com

  2. DrRich on May 9th, 2008 8:20 pm

    Dr. Lou,

    I don’t find myself disagreeing with anything you’ve said, which, I believe, can be boiled down to three major points:

    1) The malpractice (or, if you prefer, medical liability) situation is extremely destructive. Agreed.
    2) Doctors have relinquished the notion of being a profession. Agreed.
    3) For doctors to have allowed destruction of the classic doctor-patient relationship, without putting up a fight to the death, is patient abandonment. Agreed.

    You don’t come right out and say it, but since you “tend to disagree” with my views, presumably that means you believe that fighting for malpractice reform would be a very good thing for doctors to do.

    And under normal circumstances, since the malpractice situation is extremely destructive (point 1), you would be absolutely correct. But for doctors to focus on that when, at the same time, the medical profession is being utterly torn apart and patients have been abandoned to their own devices (points 2 - 3), seems (to me) counterproductive at best. It’s a distraction. Potentially a fatal distraction.

    The cruise ship has struck an iceberg and is taking on water fast. The captain and crew have to act rapidly, efficiently and correctly just to have some slim hope of saving her. But if, rather than working to save the ship, they choose to focus instead on trying to round up a really annoying gang of burglars who have been preying on the passengers, they will lose their last hope of salvaging the ship for everyone. They should save the ship first, THEN go after the bad guys. Doing it the other way around would be counterproductive.

    If it’s not already too late, doctors are working on a constricted time schedule as well. Will their profession in 5 or 10 years be worth even trying to save? What should they be focusing on today to salvage some degree of professionalism? I just don’t believe that’s malpractice reform.

    And finally, to be blunt, if doctors are resigned to being ciphers accountable to the central authorities instead of being true advocates for their patients, then the fact that their work environment is more unpleasant, stress-filled, and unfair than it ought to be is certainly unfortunate, but they should not expect it to arouse widespread public indignation. Let doctors focus instead on fixing your points 2 and 3; if they do that, then addressing point 1 will become recognized by almost everyone as a broad societal obligation.

    Rich

  3. SamEyeAm on May 10th, 2008 12:27 am

    LONG LIVE THE KING.

    Dr. Rich you have reached the third rail of modern medicine. Many physicians lack the emotional quotient and common sense needed to guide them thru the jedi mind trick of medical malpractice reform. These deficiencies have allowed fear of medical malpractice litigation to become the engine of political and financial agendas. The insurance companies and defense lawyers are making out like bandits “milking” doctors for ever increasing premiums and defense work. Hospitals and certain specialties are mining a mother lode of over-utilization as physicians practice CYA medicine. The covert rationing forces are manipulating/pressuring physician interaction with patients thereby creating a catalyst for decreased physician-patient communication (trust)thereby ensuring malpractice suits when any undesireable results occurr. The economic pressures of decreasing reimbursements and increasing operating expenses are pushing physicians to increase volume (see more patients) Higher patient volumes with resultant liability exposure synergizes with the covert rationing to supercharge the volume of malpractice litigation. Even the defense attorneys are complicit by instructing the physician to cease all communication with the plaintiff patient when sometimes a heartfelt apology might significantly lower med-mal case volume. Billing by the hour indeed.
    Isnt it obvious as patients have lost trust that with any negative outcome the chart is forwarded to an attorney and an expert medical witness is paid to review/mine the chart.

    You did not mention the horror of the ultimate malpractice reform efforts that are currently developing in Florida. Sovereign immunity. Long live the king. Soverign immunity predates the history of the USA and is literally and figuratively medievel grantting king like privileges (immunity) unto anyone who can legally achieve this shield. Normally reserved for states and federal government, now physicians and private contractors are seeking to obtain this level of malpractice refo

    Patients already have an uphill struggle as it is. Can you imagine what will happen when and if physicians obtain sovereign immunity?

    Dr. Rich you are about 50 years ahead of your time. Most physicians are so afraid of medical malpractice that they are in no condition to rationally logically comprehend your point.

    Good job.

    Sam

  4. DrRich on May 10th, 2008 7:47 am

    Sam,

    Thanks.

    Sovereign immunity, as I’m sure you know, is the final trump card of those aiming for fully government-controlled healthcare. The central authority will play this card, if necessary, to get physicians to accede to the final capitulation.

    But based on recent polls that show a near majority of doctors on board with single-payer universal healthcare, it may not be necessary. Doctors may very well go along without it, thereby becoming the only federal employees who not only can be sued as individuals for doing their federal jobs, but who have an entire industry set up to do it.

    Rich

  5. MedStudent on May 11th, 2008 4:39 pm

    Hi DrRich,

    Thanks for the very interesting post. I’m wondering if you could comment on the conflict (if any) that you see between individualized medicine, physician autonomy, and the ability of every member of society to have access to a doctor when needed. I have only glanced at the GUTH page you cited, and I apologize if these points are covered elsewhere. But, I’m wondering if you believe physicians have a professional obligation to provide care to all and if this provision can be accomplished while maintaining physician autonomy. In losing the right to more individualized care, are patients (especially the poor) winning the right to guaranteed access? In trying to provide healthcare which is truly universally accessible, should physicians be considering the good of individuals and groups of patients? Or, is this merely an example of the way that centralized authorities and the newest physicians are thinking, which bothers you so much. I’d appreciate hearing your thoughts.

  6. DrRich on May 11th, 2008 8:14 pm

    MedStudent,

    My book goes into these questions in great detail. If you don’t want to read the book, my GUTH website provides access to most of this material for free. I can mention a few major points here.

    I am not concerned about physician autonomy. I am concerned about the classic doctor-patient relationship, where the doctor’s primary obligation is to the patient. (The doctor therefore is not autonomous, but obligated.)

    I don’t believe individuals have a right to healthcare. In fact, I believe that the idea that healthcare is an inherent “right” is a very big part of the problem we face today. Because healthcare is a right, we cannot restrict it in any way. And the idea that we cannot restrict healthcare forces us to do the necessary rationing covertly.

    However, I am sympathetic to the idea that society might choose to make healthcare available to some or even all of its citizens, as long as everyone understands this is not a “right” but a contractual arrangement. Obligations under contractual arrangements can be negotiated and restricted, and indeed in this case they will have to be restricted (i.e., healthcare will have to be rationed).

    The necessary rationing needs to be be done openly, under a system of transparent rules. (This whole blog is a demonstration of the perfidies of covert rationing.) Under such a system, doctors would again become their individual patient’s advocate, working to guarantee that they receive all the appropriate healthcare due them, under the system of clear rationing rules.

    Rationing will still take place, just as it is today. But the rationing will be open and much more equitable and much less destructive, and patients will no longer be abandoned to their own devices within a hostile healthcare system. And doctors will have regained their status as true professionals.

    I’ll just mention one more thing here. No system will work - especially not in the U.S. - unless individuals retain the ability to buy as much healthcare as they want, with their own money, outside the publicly-funded system. Aside from making the difference between feasible and unfeasible, there are many positives that will come out of this individually funded care, even for those who rely on publicly funded care.

    Again, my book (and website) elaborate greatly on these principles, and even describe in some detail an entire program for implementing them. I’m sure the specific system I propose is not the best imaginable, but I have presented it just to show that such a thing can be done.

    Rich

  7. Dr. Val on May 11th, 2008 11:36 pm

    Well, Dr. Rich, I must slightly disagree with you here. While I believe that patients should certainly be able to sue a negligent doctor, I think that frivolous lawsuits are a real problem. I favor the Canadian legal system, where there are consequences for initiating a frivolous suit - i.e. the plaintiff pays all legal fees if the suit is deemed to have no merit. The judge sets the pay out when wrong doing is proven - and there are fairly standardized ranges of awards.

    While I don’t think that the cost of healthcare is skyrocketing primarily because of our backwards legal system, I think that cost savings are meaningful wherever we can get them. Sovereign immunity is extreme and inappropriate (yet seems to exist for military personnel - who can’t sue their docs - which I think is unfair).

    I am a big fan of patient empowerment, but we can’t let the bad apples run amok either. Checks and balances are important for docs AND patients alike.

  8. DrRich on May 12th, 2008 6:37 am

    Val,

    I did not expect that the position I’m taking here would turn out to be particularly popular. That said, we don’t disagree on everything.

    The current malpractice system is a travesty. Agreed.

    Frivolous lawsuits are a real problem. Agreed.

    The Canadian legal system, where plaintiffs who file frivolous lawsuits are subject to punishment, is a good idea. Agreed.

    Where we disagree, I suppose, is that I believe that for doctors to push hard for malpractice reform at this juncture (even for an apparently reasonable kind of reform such as the Canadian variety) is, in principle, a bad idea. Doctors are being coerced (by Congress, by the US Supreme Court, by insurers, by ethicists, and by evidence-based pseudoscientists) to abandon their primary mission of advocating for individual patients, a process that puts their patients at risk of life and limb, and that wrecks physicians’ last pretense to professionalism. At this juncture, I believe that if, rather than fighting the existential battle they need to fight, doctors instead focus exclusively or even primarily on malpractice reform (i.e., protecting themselves by further limiting the prerogatives of their abandoned patients), doctors are further capitulating to this profession-ending process.

    Insisting on malpractice reform as part of a larger program that vigorously reasserts their roles as their patients advocates would place doctors back on firm ethical grounds. Insisting on it without reaffirming their professional duties not only is one more step toward leaving patients to their own devices, but also diminishes one of the only remaining “devices” at the patients’ disposal. My argument is that for doctors to insist on malpractice reform as things are now, where they have been maneuvered into placing the payers first and marginalizing their patients, pushes their patients into an even more compromised position, and thus further diminishes the medical profession.

    The malpractice system is unfair and wasteful, and further erodes the trust between doctors and patients. It needs to be fixed. But to fix it, doctors first (or simultaneously) need to reaffirm that they can be trusted to advocate for their patients. Without that affirmation, insisting on malpractice reform will just drive deeper the wedge between doctors and their patients.

    Rich

  9. Paul Prescott on May 12th, 2008 5:45 pm

    I get SO tired of hearing about doctors ordering mucho tests for fear of malpractice lawsuits.

    Yes, that happens. but what i see MORE of is docs ordering mucho tests because THEY are idiots, badly trained, or whatever.

    Example: 5 yo child who “pees a lot” gets an A1C, FBS, insulin levels, and C-peptide.

    Example: 3 yo with in-toe gait. Gets xrays, MRI (for simple femoral anteversion).

    I saw both of those AFTER being seen by other “doctors.”

    THOSE docs are idiots, and should never be in practice. But they are.

  10. Midwife With a Knife on May 13th, 2008 4:29 pm

    I actually think that malpractice/tort reform would dramatically improve patient-physician relationships. I practice in a very litiginous population, and I think that fixing this problem would eliminate one of the drains on physician time and energy (we currently do not have a single attending in our large, academic, tertiary care center who is not involved in an active lawsuit), and allow them to be better advocates for their patients. Also, it would remove one of the barriers in the physician-patient relationship. Sure, if I do something that’s actually negligent and results in harm, than I should be sued. I should not be sued because someone thinks my hospital is a good, rich target.

  11. Christopher Eckel on July 18th, 2009 9:39 pm

    The problem with defensive medicine/malpractice is:
    1. every test you do that you don’t really need to is one test that is needed that you can’t do.
    2. The low yield of these diagnostic adventures undermines patient confidence.
    3. Currently the case are so WRONGLY decided on the merits that they engender no response except excess waste in a vain effort to deflect litigation.

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