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Exactly Wrong on Malpractice Reform

That’s what the Cleveland plain dealer and Stephen Koff, Bureau Chief, are with regard to medical malpractice reform — exactly wrong! In a front page article in the March 20 Plain Dealer on tort reform Koff commits the equivalent of journalistic malpractice.  Allow me to explain.

Some time ago I wrote a post explaining my position that medical malpractice tort reform was essentially equal to health-care reform. I wrote a follow-up piece explaining that everyone who is involved in a medical malpractice case ends up losing. In fact, the specter of losing is so onerous that doctors will do pretty much anything in order to avoid a medical malpractice lawsuit. Hence we have the enormous problem of defensive medicine, medical care that is prescribed in order to prevent the filing of a medical malpractice lawsuit, and medical care that does not do anything to improve the health of the patient. There are actually two very distinct forms of medical malpractice tort reform and by confusing and intermingling the two Koff does a disservice to everyone reading his article.

Some 10 or 15 years ago there was a medical malpractice “crisis” where the medical malpractice insurance premiums started to rise so fast and so high that doctors were having difficulty affording them. Premiums rose higher in states that had a more friendly atmosphere for the filing of malpractice lawsuits. In these states many doctors in high-risk specialties like obstetrics and neurosurgery either curtailed their practices, or left the state entirely. Our own state of Ohio was particularly affected by this crisis. Multiple efforts at  ”tort reform” were made in Ohio, but it wasn’t until a significant change in the makeup of the Ohio Supreme Court occurred that these reforms took root. Ohio, California, Texas, and other states capped non-economic awards in medical malpractice cases, and this produced a more predictable economic environment for medical malpractice insurance companies. Consequently, medical malpractice insurance rates not only stabilized but began to fall.

Here’s where Koff starts to go astray. Despite the fact that Ohio’s tort reform efforts were specifically directed only at malpractice insurance rates, Koff conflates this with true tort reform that would eliminate nuisance lawsuits. Even though tort reform targeted at stabilizing and decreasing insurance rates would be EXPECTED  to have no effect on medical expenditures, Koff proposes that  the fact that medical insurance costs have risen since 2004 (the year Ohio passed lawsuit liability reform) proves that “tort reform” does not lower the cost of healthcare. This is, of course, nonsense. The medical malpractice tort reform bill passed in Ohio in 2004, similar to all of the tort reform bills passed across the country, was designed and expected only to limit the size of medical malpractice awards in order to stabilize malpractice insurance costs.

Believe it or not, the obfuscation and confusion actually gets worse!. Koff admits that medical malpractice insurance for insurance premiums for doctors have dropped on average 22% since 2006 in Ohio. Success, right? Well, not according to Koff. He goes on to conflate malpractice insurance premiums with family health plan premiums, noting that health plan premiums rose from $9590 in 2004 two $11,425 in 2008. But commercial family health insurance plans aren’t even a good proxy for medical expenses! Numbers, numbers, and more numbers. Let’s just keep throwing numbers in until no one can figure out what number goes in what basket.

Here’s the rub: the type of medical malpractice tort reform necessary to affect the practice of defensive medicine is totally different from the type of medical malpractice tort reform necessary to stabilize and lower malpractice insurance rates. It’s just so painful and so disruptive to a doctor’s practice and doctor’s life to be involved in a medical malpractice case that the only type of reform that will have any effect on defensive medicine is reform that prevents the filing of all but the most clear cases of medical malpractice. There just aren’t enough barriers to the filing of weak cases, or throwing in the names of any doctor whose name appears on the chart of a patient who has suffered some harm while in the medical system. And once you’ve been named in a lawsuit it’s an incredibly time-consuming and expensive process, even if you are subsequently dropped from the case long before it ever goes to trial.

So what are we to do? Well first let’s make sure that we are talking about the right type of tort reform. Tort reform that makes it very difficult to file nuisance lawsuits, lawsuits that have very little chance of succeeding, or lawsuits that have no support from independent experts is where we need to start. Removing the “wild card” aspect of jury trials where a defendant doctor is at the mercy of 12 men and women who are (quite humanly) more sympathetic to the plight of an injured patient than they are to the word of the law is where we would go next. How about the creation of a “compensation pool” to provide for the care of all injured patients whether or not true malpractice has occurred? This would remove the stigma of malpractice or “bad medicine” from what is otherwise simply an adverse outcome, and this would still leave open the possibility of further action in the case of true malpractice.

Let’s also do away with the national databank where every case of malpractice that is either settled or found on behalf of the plaintiff or injured patient is recorded. More medical malpractice cases actually go to trial now than before this databank was created because no doctor wants to settle even the smallest of case if it means his or her name will end up on this “black list”. I have made the point several times before that no one, no doctor and no hospital and no health organization, will report errors until the risk of liability for doing so is either reduced or eliminated. We will continue to have the same errors over and over again, causing the same injuries over and over again, until doctors and hospitals feel free to report these errors without fear of retribution or lawsuits. This, and only this, is the type of tort reform that will have an effect on defensive medicine.

How big a deal is defensive medicine? Here, too, we see a willful underestimation of the impact of defensive medicine in Koff’s article. The CBO reports that nationwide liability reform could cut the federal outlay for medical care by $54-$110 billion per year over the next 10 years. However, in response to a request from the American College of surgeons, the RAND Institute found that the MINIMUM  impact of defensive medicine was approximately 10% of all medical expenses per year. That would be 10% of $2 trillion. Minimum. $200 billion per year. Other estimates by healthcare economists have gone as high as 20% per year. Think saving $200 Billion per year might be helpful?

Two types of medical malpractice liability reform confused and conflated, mingled and muddled by Stephen Koff who gets it exactly wrong in the Cleveland Plain Dealer. This article should be embarrassing to the editors of the Plain Dealer if not for the fact that it probably represents their own level of understanding of tort reform, or even worse represents the editorial view of the Plain Dealer. As an educational piece this is such a bad example of reporting and analysis that Stephen Koff probably deserves to be fired.

I’m betting it gets him a raise.

5 Responses to “Exactly Wrong on Malpractice Reform”

  1. March 28th, 2010 at 10:37 am

    darrellwhite says:

    Thinking further about the national databank for malpractice it’s important to state clearly that true malpractice does occur. There should be serious consequences for malpractice, among them open access to those case and those doctors involved. Perhaps there is a place for a databank that lists all malpractice judgements at trial, and perhaps only those cases that settle in which a clear admission of malpractice is made.

    One of the barriers to reducing defensive medicine is the present situation in which ALL settled cases are reported. If you as a doctor face the stigma of settling and the assumption that you must have committed malpractice you have exactly zero motivation to put the case aside for a nominal amount of money (which incidentally would cost the insurance company less money than trying the case, thereby further reducing insurance rates) and get on with your life. You fight to the bitter end if you believe you are innocent whether it’s $2,000 or $2,000,000.

    And you keep ordering extra medical care just in case that next thing you order is the thing that will prevent the case from occurring. Every time.

  2. March 30th, 2010 at 2:41 pm

    John Brown says:

    Interesting hearing this from a Doctor’s point of view… Of course, it isn’t doctor’s who write tort reform or even health care reform. I find that to be unfortunate. If we take a look at criminal law, we might begin to see that they handle the situation very similarly to the process described in the article. If the D.A. thinks that a conviction is unlikely or will burden the State more than necessary, than the case doesn’t get filed. In essence, malpractice should (in my, the consumer’s eyes) be criminal law. I understand that medical personnel are human of course and fallible, but they are entrusted with the lives of their patients. This isn’t some small trust, but complete faith, which is sometimes misplaced, especially if said doctor is limited to the aforementioned defensive medical practice. If doctors were only punished for true abuses, I think that the medical world would be able to grow exponentially. The problem here however is that we as American’s seem to want the easiest way out of our problems, which is often why these lawsuits come about… people trying to make a quick buck. All that I can say is that I am currently glad to not be a physician. At least in my world people only hold me to the lowest common denominator standard of “trainer…” It gives me the underdog role when I make my move to rule the world.

  3. March 31st, 2010 at 6:29 am

    darrellwhite says:

    John, nice take on the issue. In fact if ONLY docs wrote the regulations they would have little credibility, however reasonable they might be. Slowly evolving away from a punitive system toward one that emphasizes safety and quality outcomes, perhaps under the guidance of a “Special Master” like tax court or the vaccine court would probably work better.

    Oh yeah…it’s a long time since doctors were at risk to rule over all they see…

  4. July 19th, 2010 at 4:45 pm

    Breakup Advice says:

    we need socialist health care like sweden!

  5. August 18th, 2011 at 3:35 am

    Mauro Wininger says:

    Thanks for the great post. Guess I learn something new every day!

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