The Covert Rationing Blog

Debating Malpractice Reform

May 19th, 2008 by DrRich

And now, for the main event.

DB has challenged DrRich to defend the “unusual” position on medical malpractice reform he staked out in this space a little over a week ago.

In issuing this challenge, DB made two major points. First, DB notes that the present malpractice environment is universally counteproductive. To elaborate: There can be no doubt that today’s malpractice environment causes “financial and psychic” harm to doctors. It causes doctors to waste money on needless tests and so fiscally harms the healthcare system. It exposes patients to unnecessary tests and so harms their time, energy and potentially their safety. It renders every doctor-patient encounter a potentially adversarial one, and so harms the doctor-patient relationship.

On this first point, DrRich cheerfully concedes. The present malpractice environment does all this harm and more.

Secondly, DB points us to the malpractice reforms that have been enacted in Texas, and asks DrRich how he supposes these reforms will harm the doctor-patient relationship.

DrRich doesn’t know the details of the Texas reforms, but from what he knows, only lawyers (who, DrRich would like to remind one and all, he despises) would argue that such reforms would materially harm a patient’s ability to seek just redress from true medical malpractice. So, DrRich cheerfully concedes on this second point, too. Malpractice reforms of the sort enacted in Texas are good for doctors and the healthcare system. Such reforms may likely have a salutary effect on the doctor-patient relationship (by possibly reducing the notion of “patient as adversary,” that causes doctors to practice defensive medicine aimed at protecting themselves more than at helping their patients).

And furthermore, DrRich celebrates the fact that society, through its duly elected representatives (in this case the Texas legislature), will at least occasionally consider the respective interests of all parties involved (the doctors, patients, the state populace, and yes, even the trial lawyers), and enact malpractice reforms like these which will best meet its overall needs. That’s how the system is supposed to work.

So, has DB just won this debate hands down?

Yes and no. Yes, in that, regarding the specific propositions DB has laid down (that the malpractice environment is univerally harmful, and that the Texas reforms are reasonable), DrRich cheerfully concedes both points. No, in that, regarding the basic message of his original post, DrRich gives no ground. (The reason DrRich can “cheerfully” concede to DB’s propositions is that he can do so without giving up any of the ground he originally claimed.)

Before explaining how he can agree with DB’s propositions without giving ground (which, everyone will have to admit, will be a real trick), DrRich needs to make two additional concessions. First, in the attempt to make his posts interesting and memorable while at the same time making serious points, DrRich is not above affecting a bombastic personality, using semi-archaic verbiage, liberally employing irony and sarcasm, and engaging in a certain amount of exaggeration and hyperbole. Simply consider some of the titles DrRich has chosen for his postings: A Truly Admirable Degree of Inefficiency, Why Canadians and Other More Advanced Civilizations Should Root Against US Healthcare Reform, How to Invest in the New Medicare Audits, and, of course, Proof that Warren Buffet Reads This Blog. (Important note to readers: Whenever DrRich purports to dispense investment advice of any variety whatsoever, you can safely assume he’s engaging in hyperbole. NEVER take DrRich’s investment advice.) DrRich humbly submits that the title of the post now in question, Covert Rationing Makes Malpractice Reform A Bad Idea also employs at least a bit of hyperbole.

Second, it is noted with dismay that DB says he had difficulty following the logic in DrRich’s original post on malpractice reform. DrRich has been reading DB’s blog for a long, long time, and has come to admire him as a paragon of logical thought and expression. So the fault here can only be DrRich’s. And if as a consequence DB attacked a hill that DrRich was actually not defending, the responsibility for this misdirection also lies with DrRich (who, it may fairly be claimed, must have lined the summit with Quaker guns to draw and waste DB’s fire).*

So DrRich will now try to: 1) restate more clearly the proposition he inadequately conveyed in his original posting, 2) elaborate on why he believes this proposition to be true, and finally 3) suggest what doctors ought to be doing to place the issue of medical malpractice on a more equitable footing.

DrRich’s Proposition: For doctors to push hard for malpractice reform at this juncture is, in principle, counterproductive in the long-term both for them and for their patients.

Why DrRich believes this proposition to be true:

A) The medical profession is being systematically and purposefully destroyed. In the attempt to control healthcare costs (as they have been deputized by society to do), the feds and the insurance carriers have, in uncountable ways, coerced physicians to place the needs of the payers ahead of the needs of their individual patients. That is, they are intentionally destroying the doctor-patient relationship, killing medical professionalism, and causing doctors to abandon their patients to their own devices in an increasingly hostile healthcare system. This process has been firmly established. It has been legislated by Congress, embodied in volumes and volumes of rules, regulations and “guidelines” (strictly and ruthlessly enforced), upheld by the U.S. Supreme Court, and finally (and most tellingly) sanctioned as being entirely “ethical” by revered medical organizations. And when insurers insisted that doctors sign Gag Clauses, and when doctors did so with nary a whimper of protest, doctors were in effect signing the death certificate of their profession.

B) Losing their professionalism is a crushing defeat. While the term “professional” is claimed by many occupations today, traditionally there are only three - divinity, law, and medicine. Traditionally, what distinguishes a professional from other individuals is not merely their level of knowledge or proficiency at a particular occupation, but rather their commitment to a formal ethical code of conduct by which they pledge their primary allegience to their individual client (or parishoner or patient). This code has been considered vital because the professional is in possession of special expertise and special knowledge (at least some of which is provided to them in full confidence by their client) that, if misused, can bring irreversible harm to their client.

This code is indispensible.

The medical profession has formally dispensed with it.

Whether doctors realize it or not, abandoning this code of conduct has left them without the ethical grounding that earns them the recognition and respect and consideration always due to professionals. It has stripped them of the special status which they feel they deserve, and that in past times served them and society well. For instance, the loss of their ethical grounding has made doctors fair game for encroachment by lesser-trained individuals who can follow guidelines and complete checklists every bit as well as they can (and much more compliantly than they can), and who have the government-issued certificates to prove it.

C) Doctors are engaged in an existential battle, a battle for professional survival. The only thing that can save them - if it’s not already too late - is to find a way to forge a new relationship with their patients, a new partnership. This is probably not possible under the traditional healthcare system, since doctors have been so deeply and fundamentally compromised there. It may be possible under new practice arrangements, such as retainer practices. But whatever it takes, unless doctors can come to a new arrangement with their patients - “I’ll be your true and dedicated advocate in matters related to your healthcare; you guard and support my professional standing” - they are professionally lost, no better than pieceworkers, and are fair game for whatever the authorities choose to throw their way.

D) It is in this context that fighting hard for malpractice reform at this time is counterproductive. Doctors owe it to their patients and to their professional survival to do - and to be seen as doing - everything humanly possible to re-earn the confidence of their patients, and to forge that new alliance. To instead make the issue of malpractice reform their primary concern, or even one of many primary concerns, is (again, at this juncture) a further capitulation to the profession-ending process. For, no matter how you cut it, to fight for malpractice reform at this point in time - even the more reasonable and defensible kinds of reform like the ones in Texas - is to protect themselves by further limiting the prerogatives of the patients they have just officially abandoned. Such an action at this critical time sends the wrong message to the patients whose confidence they ought to be doing everything in their power to regain. Lobbying loud and hard for legal protection against the patients they have just abandoned will not help the profession’s long-term prognosis.

And, to be blunt, if doctors have resigned themselves to becoming former professionals, to becoming primarily accountable to the government and the insurers instead of remaining vigorous and true advocates for their individual patients as their profession requires, then they should not expect to arouse widespread public indignation or sympathy over the fact that their work environment is more stressful, risky and unfair than it ought to be. Of course, when society notices that the malpractice issue is becoming so severe that doctors are becoming scarce, then society may choose fix it just enough to entice doctors to continue taking the risk. This, DrRich submits, is what happened in Texas. But once doctors abandon their professionalism, they lose their standing for any special considerations beyond the strictly utilitarian.

The right way to get malpractice reform:

The moment physicians take charge of their situation, refuse to let their profession die an ignominious death at the hands of the insurers and the feds (and of the compromised ethicists who tell them it is quite appropriate for individual doctors to place societal beneficence ahead of the good of their individual patients), and establish modes of practice that again allow them to become partners with their patients in a new doctor-patient relationship, THAT’S THE MOMENT doctors can insist on fair and equitable malpractice reform. At that moment, malpractice reform becomes part of a package that restores medical professionalism, and offers patients protections they can never get in a court of law (where they can go only after the damage has already been done).

In summary, DB is right on both of the points he sets out. The current state of the medical malpractice system harms everybody, and reasonable reforms like the one instituted in Texas remove at least some of that harm. And for more states to institute such reforms would be a favorable development.

But once doctors finally abandon their professionalism, then whatever happens to them - whether it’s malpractice abuse or displacement by doctor-nurses - is fair game. Their fate will be determined by arbitrary political and economic forces, rather than by what’s right or fair or equitable or professionally appropriate. Even if Texas-style reforms were to become the law of the land, the medical profession would still be dismantled and patients would still be abandoned within a hostile healthcare system. Malpractice reform without professional survival is fundamentally worthless.

DrRich’s point, as poorly stated as it might have been, is that if doctors are unwilling to go to the mat defending their profession, then fighting for medical malpractice reform is really immaterial and irrelevant, if not counterproductive, in the big scheme of things. Such reforms will certainly make the diminished lives of doctors more comfortable, and will save society some money to boot. But doctors should not ask non-doctors to fight along with them, or to care more than passingly about their comfort or security, or even to not deeply resent that they are choosing to waste what little leverage and what little time they have left on advancing malpractice reform, instead of reasserting their rightful role as their patients’ advocates.

DrRich apologizes for the length of this post, but it is a debating strategy he has found useful in the past. Drone on and on, and the opponent may lose his place, go to sleep, or just become so bored that he is struck dumb. DrRich waits to see which of these effects he might have had on DB.

*DrRich naturally assumes that a denizen of the South like DB will be acquainted with the deceptive techniques of General Lee and other creative commanders of the former CSA.

Posted in Medical malpractice

5 Responses to “Debating Malpractice Reform”

1. SamEyeAm wrote on 05/19/08 at 12:54 pm :

   Dr. Rich,

   Physicians are in survival mode and they simply cant understand this concept without breaking down the real threat into hard numbers. Not everyone actually has the ability to grasp the abstract elements of your arguments nor will their emotional state prove conducive to that analysis. I will do it for them by the basic numbers.

   My med mal insurance company charges me $30,000 for 1 million/3 million in litigation land “the sky is falling” Florida. That $30,000 covers all suit legal expenses as well as a individual settlement up to $1,000,000 per incident with 3 incidents per year. Given my uninsured legal expenses fighting the true covert rationing threats to medicine, my med-malo insurance premium is a WALMART bargain. For non-convered liability, a physician can ring up a $30,000 bill in a few months.

   If you look at the legal and financial liability directly attributable to insurance companies, hospitals, medicaid, and medicare to a medium volume solo practitioner,the number may be near incalculable. Add up the lost reimbursement from ER call, non payment for hospital ER call coverage, down-coding/non payment by insurance companies, inexorable reductions in medicaid/medicare physician fee schedules and you can see where the real financial risks exist. The risk of national practioner databanking and medicare fraud incarceration are the sprinkles and icing on that cake.

   If you were sophisticated enough to do that nightmare analysis, I am estimating that you could personally self underwrite and cover all malpractice insurance expenses and settlements every year. Meanwhile the main agents of health care rationing ROCK ON exerting hegemony over physicians while the “leaders” of medicine distract physicians from the true threat.

   Since physicians are a relative minority in the population, the only way physicians can effect significant political change is to empower the patients as the gatekeeper of modern medical social reform. The patients still trust us, appreciate us, and respect our opinions. Therefore why should we cut all ties to patients by sharply curtailing or eliminating all torts? That sends a strong message of distrust.

   Is that the behavior of a group that is down and out? Is that the behavior of someone who you trust? When our credibility with patients is utterly lost then it will be game, set, and match to the health care rationing team.

   Sam

2. Roy M. Poses MD wrote on 05/20/08 at 11:00 am :

   I agree completely that deprofessionalization is the main problem.

   As we note again and again on Health Care Renewal (http://hcrenewal.blogspot.com), the problem is attacks on physicians’ core professional values.

   What I would add is that these attacks do not come just from the organizations that purport to pay physicians’ bills, that is, from Medicare, Medicaid, and managed care organizations and health insurers.

   The attacks can come from just about any kind of health care organization, for example, hospitals and health care systems; information technology companies; drug, biotechnology, and device companies; medical schools, universities, and other academic institutions; professional societies; various not-for-profits like accrediting organizations, supposed patient advocacy groups, disease oriented societies, etc, etc, etc.

   On Health Care Renewal we have documented threats to core values relating to all of the above, at some point in time.

   So I agree that medical malpractice insurance and the whole issue of medical malpractice lawsuits, while important, are hardly the main event. But also, covert rationing and threats to core values come not just from government agencies and managed care/ health care insurers.

3. db wrote on 05/21/08 at 9:06 am :

   I will be commenting on my blog either this evening or tomorrow morning. Sorry for the delay.

4. SamEyeAm wrote on 05/26/08 at 10:41 pm :

   I have been watching this blog for comments and observe the real time “anechoic” nature of health news. The more profound the news, the more “anechoic” indeed.

   Along the lines of liability “reform” is the excellent coverage by Mr. Goozner regarding premption of state liability laws by federal laws which have recently been upheld by the supreme court. When i read this, I wanted to throw up:

   http://www.gooznews.com/archives/001061.html

   Even a respected former FDA official has spoken out against pre-emption:

   http://www.pharmalot.com/2008/02/former-fda-commish-argues-against-preemption/

   The days of people having any ability to safe guard their lives is slowly ending. When a physician or his/her family member is the one that suffers, said physician will cry like a baby without legal recourse against another physician, hospital, insurance company, drug company and/or medical device manufacturer.

   Ignorance, indifference, selfishness make karma a bitch!

   Sam

5. Dan wrote on 06/19/08 at 3:06 pm :

   So, You Want To Be A Doctor…..

   Lately in the media, others have said and appear to express concern about the apparent shortage of primary care doctors in particular. Typically, the main reason stated and speculated for this decline of this health care profession that historically has been the apex of our health care system is lack of pay of this specialty when compared with other specialties chosen by potential physicians while in training.

   Yet considering the additional attention of shortages of students in some medical schools as well, one may ask the question as to whether or not people want to be any type of doctor in the first place in the United States. About one third of their lives are spent achieving the requirements of this profession. Reasons for not choosing to enter this profession are several and valid and include the following:

   There is the issue of long hours- with primary care in particular because of the apparent lack of doctors of this specialty. Such doctors may be over-worked without an expected pay reflecting the work they do. Furthermore, those doctors employed by health care systems are required to see a certain number of patients a day, and receive a monetary bonus if this expectation is exceeded. It seems that most doctors are members of such health care systems. So burnout never anticipated certainly may occur. And I consider such a requirement mandated by health care systems demeaning to this profession, and leave the doctor without the control that the doctor is entitled to due to their training and experience, and this competes with the other adversary of doctors, which is managed care. In fact, even government healthcare programs provide financial incentives in relation to the pay-for-performance system to improve the quality of care.

   However, the recent increase in hospitalists, who are those doctors that are usually Internal Medicine doctors who care for patients presently under hospital care, and they have lessened the load for all doctor specialties for the work they do that the admitting doctors would have to do without their presence. This in itself makes a doctor possibly more effective and efficient in their practice outside of the medical institution.
   All doctors, I presume, face a high degree of emotional and physical stress associated with their profession, as stated in the previous paragraph, for example. And this is not to mention the incredible stress associated with patient care in the first place, with some patient cases causing more stress than others. Patient care duty is a noble and great responsibility.

   Doctors, due to the changes that have occurred recently in the U.S. health care system, not only have the issue of money to deal with, but also a loss of autonomy regarding patient care combined with loss of respect that may be due in large part to the others previously mentioned who dictate how they practice medicine. Ironically and often, these others who direct these doctors are not as qualified as the doctor in the first place. This is complicated by the perception that the public, with some who view doctors as having the easy life with their pay and profession, which does not seem to be the case presently. Another frequent occurrence is the doctor’s patient directing their care with their doctor from either DTC ads or researching medical disorders on the internet themselves.

   There are also reasons of malpractice insurance, which is why doctors choose to join health care systems, it is believed, to pick up the tab for this necessity, along with eliminating the concerns of running a practice in a private manner, which historically has been the case, as their offices are owned by the health care system as well. Yet having another pay their malpractice premium does not eliminate their concern about being sued for error perceived by one of their patients. To protect against this, defensive medicine is implemented by doctors, which basically involves copious amounts of documentation and ancillary diagnostic testing regarding the doctor’s adherence to recommendations and guidelines.

   It has been said that up to 90 percent of malpractice cases against a doctor are baseless and without merit, so they are unsuccessful for the plaintiff, yet this still affects the rate the doctor or another system has to pay for malpractice insurance of a wrongfully accused doctor. This is combined with the amount the doctor has to spend to defend themselves in such cases, which separates them from their focus on the restoration of the health of their patients completely. Furthermore, malpractice lawsuits cost about 100,000 dollars over the course of about 4 years for such cases. A tort reform in Texas in 2004 resulted in annual malpractice premiums reduced by about a third of what they were. Soon afterwards, claims against doctors remarkably dropped by about 50 percent. Some specialties of doctors pay more premiums for malpractice than others. For example, OB/GYN doctors have been known to pay around 300 thousand dollars a year for this insurance. Certain types of surgeons experience a similar high rate of malpractice premiums. Malpractice flaws are catalysts for doctors to practice the inappropriate defensive medicine mentioned earlier to avoid potential litigation, which is a waste of health care resources with ordering unneeded patient methods or procedures to cover themselves against such lawsuits.

   Also, about a third of the U.S. is insured by Medicare, which progressively has lowered what they will reimburse a doctor for regarding the care doctors give a patient they treat. This fact is recognized by other insurance companies who will eventually follow the recommendations of Medicare, usually, regarding the reimbursement issue, so it seems. This will lead to a doctor having to see even more patients in order to make it financially with their profession, as this has resulted in the overall income of a doctor experiencing a decline of about 10 percent over the last decade or so.

   Further complicating the financial state of a primary care doctors is that doctors normally have to pay off the debt acquired from attending medical school and training, which averages well over 100,000 dollars today after their training is completed. About 20 years ago, that debt was only about a fifth of what it is today. Paying this debt off is typically about 2 thousand dollars a month that doctors on average is what the doctors choose to pay in order to eliminate this debt in a timely fashion.

   Conversely, there are some who believe that doctors in the U.S. are over-paid. This may be true, but they are not absent of financial concerns as with any other profession. And as mentioned earlier, clearly doctors accept more responsibility involved with human health than other vocations, so this should be kept in mind perhaps more by others.

   Most doctors do not recommend their profession to others for such reasons stated in this article so far presently, and perhaps other reasons not mentioned. This is somewhat understandable, yet extremely unfortunate for the health of the public in the future. There have been cases where doctors do in fact change careers, and get into vocational fields such as medical communications or corporate medical companies. Also, expert witnessing is another consideration for those who choose to leave their profession. Finally, other choices considered include consulting and research. The training of doctors fortunately leaves them with options not involved directly with the flaws of medical care, but this is bad for us as citizens, overall. The etiology of their departure from their designed profession is largely due to the negative state of mind that occurs as a doctor in today’s health care system, which is expressed by them at times in apathy, cynicism, and vexation regarding their limitations coerced by others.

   Conversely, not all doctors are deities. Like others, some are greedy and corrupt, which complicates others in this profession. Personally, I believe that the intentions of most physicians are bonafide. Yet in time, due to the nature of the current health care system, doctors frequently and really do become cynical, demoralized and apathetic. This may be considered a significant concern to the well-being of those in need of restoration of their health, understandably.
   Not long ago, the medical profession that has been discussed had overt honor and a clear element of nobility. Such traits are not as visible or recognized anymore, which saddens many intimate with the profession and importance of public health that is needed by many.

   “In nothing do men more nearly approach the Gods then in giving health to men.” — Cicero

   Dan Abshear

   Author’s note: What has been written has been based upon information and belief.

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