Wednesday, July 6, 2011

Malpractice reform: unfinished business

In this week's Journal of the American Medical Association, cardiologist Peter Kowey, MD describes a case in which a young athlete sees him for a second opinion after a single episode of presyncope. Despite extensive cardiovascular testing that found no evidence to suggest that this young man had an increased risk of sudden cardiac death, another cardiologist had nonetheless recommended the implantation of a defibrillator. Why the overly aggressive recommendation? Dr. Kowey discovers that his colleague, who had endured a lawsuit about a patient with similar circumstances, was practicing "defensive medicine." He goes on to observe:

Defensive medicine is pervasive and takes many forms. It extends from ordering too many tests all the way to performing unnecessary surgical procedures. Lung nodules that used to be followed end up in a specimen jar in the pathology laboratory. Subcritical coronary artery lesions are dilated and stented. And the contamination is not just at the individual physician level. Practice guidelines are formulated by colleagues who hear the wolf at the door. In the absence of definitive data, wouldn't it be logical that recommendations about the frequency of prostate biopsy in patients with abnormal PSAs would be on the more frequent side for safety's sake? And once those guidelines are published, physicians who ignore them do so at their peril.

Indeed, malpractice reform is the "unfinished business" of the 2010 health reform legislation, which included few serious initiatives to address what physicians universally regard as a huge problem. Recent estimates that defensive medicine accounts for only a small fraction of excess health care costs are limited by the design of the studies, which typically compare costs in areas of the U.S. with malpractice award "caps" to those with no caps - thus ignoring the baseline ordering of unnecessary tests or procedures by physicians who are motivated to avoid being sued regardless of limits on individual awards.

Here's what I wrote in a post about this issue in September of 2009:

Tort reform is a good idea, whether it saves money or not. It is ridiculous that the only way that a patient (or grieving family member) can obtain money to provide for someone crippled by a bad health outcome is to sue the doctor, whether or not the doctor was "at fault" or not. As a result, the vast majority (greater than 90 percent) of patients who probably deserve compensation for medical errors never see a dime, and those who do receive compensation after years of litigation end up giving much of what they win to their lawyers.

Health reform would benefit greatly from including tort reforms modeled on existing no-fault compensation programs, such as the National Vaccine Injury Compensation Program or the Virginia Birth-Related Neurological Injury Compensation Program.

It's still absolutely true.


  1. Very good article, Dr. Kowey, and post, Dr. Lin. Tort reform is sometimes seen as doctors (Republicans) vs trial lawyers (Democrats). And yet, as you point out, it makes no sense to have the only way that a person with a bad outcome be reimbursed is to show that the doctor malpracticed -- whether s/he did or not. And makes just as little sense for the physician who does malpractice to not have any control placed on them unless there is a documented bad outcome. I explained this position to a judge when I was on a jury panel during voir dire, and he asked if I could follow the law; when I said yes, he refused to excuse me for cause. The plaintiff's attorney had to use a pre-emptory challenge to get rid of me, a doctor. In Europe, this is not such an issue. The entire concept of control is addressed very well, although focusing more on cost containment but I think applicable to malpractice, by Grumbach and Bodenheimer in their 1990 article in Milbank, "Reins or Fences",

  2. The New England Journal of Medicine published an article this week that examined the yearly and cumulative risk that physicians from various specialties will be named in a malpractice lawsuit. From the Results section of the Abstract: "Each year during the study period, 7.4% of all physicians had a malpractice claim, with 1.6% having a claim leading to a payment (i.e., 78% of all claims did not result in payments to claimants). The proportion of physicians facing a claim each year ranged from 19.1% in neurosurgery, 18.9% in thoracic–cardiovascular surgery, and 15.3% in general surgery to 5.2% in family medicine, 3.1% in pediatrics, and 2.6% in psychiatry. The mean indemnity payment was $274,887, and the median was $111,749. Mean payments ranged from $117,832 for dermatology to $520,923 for pediatrics. It was estimated that by the age of 65 years, 75% of physicians in low-risk specialties had faced a malpractice claim, as compared with 99% of physicians in high-risk specialties."