The telling thing about laws to address malpractice liability is that they typically are focused on capping large verdicts. But such laws are illogical: generally, large verdicts will be awarded where a doctor screwed up and caused the most damage. Cases with large verdicts are the most meritorious ones, and the ones where limiting liability is least likely to eliminate over-testing that does not contribute to quality of care.
If states actually wanted to address the costs of defensive medicine, they would do something like create affirmative defenses for doctors who adhered to certain established testing protocols.
As others have mentioned, John Edwards had great success as a lawyer suing over cerebral palsy, claiming that it was caused by actions during delivery. While possible, most cases are caused by other factors such as infections, IVF, or low birthweight.
At trial, you have a sympathetic plaintiff with large needs vs a "rich" doctor and hospital. They might have caused this, they have insurance. So you systematically get very large verdicts against defendants who are unlikely to have done anything wrong. Edwards was very good at theatrics and not good on science.
Trials that rely on science and math are not great to take to a jury. Even discussions here get emotional when you deal with subjects like appropriate risk analysis and tradeoffs. Saying that you have a formula to only fix defects that kill more than x people or cost less than y per life saved is a great way of losing at trial and getting destroyed in a thread. It's also how every company and government makes decisions around safety - where stop signs go, guardrails, drug approval, armor in tanks...
Getting tort law right is hard - you want true injuries to be compensated but discourage people that are looking for lottery tickets.
We live in a country of 300 million people. Every permutation of things that can happen has happened. But that doesn't mean that large verdicts "where no or minimal injury was suffered" happen often enough to account for a significant share of medical malpractice payouts.
There was a Harvard study that looked at this issue pretty systematically, and concluded that the idea of "systematically" "large verdicts against defendants who are unlikely to have done anything wrong" does not fit the data: http://archive.sph.harvard.edu/press-releases/2006-releases/.... Most importantly, claims are about as likely to get denied despite the presence of error as they are to get paid despite the absence of error. (So improving the accuracy of the system would not necessarily decease payouts.)
The doctors/soon-to-be-doctors I've talked to/read aren't worried about the amount of money that leaves hospitals in malpractice payouts. They're worried that it's too easy to sue a doctor / hospital over arbitrary fabricated bullshit and win.
$6 million verdict that was still being fought in the courts many years later rather than simply paid.
Oops, the reality: Trial #1: The woman was determined to be 90% at fault for her baby's problems, the law here doesn't let you collect if you're found more than 50% at fault. Trial #2, this time filed in the name of the baby. Still 90% to the woman. However, the jury assigned 5% to one doctor who examined her once several hours before the birth. He's the only one with anything, the whole $6 million verdict landed on him.
If that's what the lawyers consider a good case...
I think my takeaway from that analysis was that doctors are just as illogical as everyone else when it comes to things that aren't medicine. So you shouldn't really be surprised that they're unduly influenced by large, visible, and rare lawsuits, because that's how everyone works psychologically.
The correct place to look is not the perception of doctors, but the conclusions from actuarials in the setting if insurance rates.
If it was just a perception bias in the doctors, then it wouldn’t be reflected in the insurance premiums.
(1) Your insurer will usually prefer to settle rather than go to court, it's cheaper, so fuck your defense.
(2) You still take the reputational and emotional hit of being sued.
People discussing this rarely seem to get that docs are far more emotional about this than the money at risk merits. There are many things in play beyond "I don't want to lose a lawsuit." We really do get very upset about malpractice suits, for many reasons beyond our premiums going up.
There's also the risk of losing right to practice medicine - that is, being banned from providing the very service you spent the best part of your life specializing in.
Not a bad suggestion but resolving regulatory overhead by instituting regulation is a bit, suboptimal, IMHO.
The better solution is to reduce costs of the tests themselves:
https://news.ycombinator.com/item?id=17620197
In the software world, we have enjoyed significant productivity boost using Git/Hg/FOSSIL vs. CVS/SVN.
Branching in CVS/SVN was so expensive that people rarely do it. It takes me 2 seconds to branch in Git/Hg/FOSSIL
The Danish approach.
https://www.propublica.org/article/how-denmark-dumped-medica...
Could you read a little more about that case?
1) McDonald's had burned hundreds of people by that point, as the plaintiff's lawyer said in "Hot Coffee", "they were on notice." They served it that hot IIRC because it would stay hot slightly longer, even though lowering the serving temperature a tiny amount reduced burning disproportionately and would have prevented that and hundreds of other accidents.
2) The server didn't actually attach the lid to the cup.
3) She had horrible burns, 3rd degree.
4) McDonald's received an offer to pay for her ~$10,000 medical expenses, and counter-offered $600.
5) This was an old lady who had never sued anyone in her life.
6) She ultimately gave up on life in her old age because of the shaming.
"Hot Coffee" opened my eyes about the whole matter. I suggest you watch it.
They made it dangerously hot because it was marginally more profitable.
At trial they claimed they served it that hot because people wanted it to be hot when they arrived at their destination, but their own research showed that people consumed their food, including coffee, during their commute.
https://qph.fs.quoracdn.net/main-qimg-4820c7e31a90a1b89482c6...
and http://www.gruberlawgroup.com/wp-content/uploads/2016/04/ste...
There are non-trivial false positive rates for many diagnostics that can and do lead to unnecessary follow-up tests, procedures, and emotional distress.
For example, "About half of the women getting annual mammograms over a 10-year period will have a false-positive finding." [0]
The US Task Force for Preventative Services works to clarify when diagnostics are appropriate given rates of false positives and false negatives for many different preventative services. And there are many groups that work to establish and record evidence-based guidelines for escalations of care outside of preventative care as well. Intermountain is one example.
[0] https://www.cancer.org/cancer/breast-cancer/screening-tests-...
What we need is doctors and a medical system motivated by the right things (health and wellness of the patient) rather than purely by profit and fear of lawsuits.
This applies nowadays to most specialists as well.
Specialists are packed to the gills already and very expensive. Specialists don't want to spend time with patients who don't actually need specialized care and insurance doesn't want to pay specialists without first qualifying the issue.
My primary care physician refused to order a blood draw for a generic std check. I had no cause to think that I was infected, but my partner and I agreed to get screened so we could stop using condoms (she was on birth control). I was quite offended by this overreach. This drove me away from the physician.
This is just not true. For example, right now, there's a lot of interest in 'diagnostic test stewardship' in hospitals to avoid overtesting, because it can lead to serious problems, like causing diseases (due to treatment with antibiotics) or infections.
Similarly, false positives for cancer screenings, etc.
We have a old school PPO plan. My wife can go to the doctor for any purpose, and sure as hell there’s a pregnancy test for $5. If you’re on a statin, you’re worth about $600/year in lab tests. Not because of insurance companies, but because the GP or NP is the top of a sales funnel. They need to drive revenue in the network as the medical networks are less efficient.
The insurance company response is urgent care clinics, which the insurance companies spent millions lobbying for. Those are great for insurance because they hand out z-packs and nebulizers and send you home. Large employers self insure drugs, so it’s a profit center for everyone. Best part for them is the 32 year old unhealthy dude stays away from the both the outrageous ER and the GP and that statin prescription.
There's also the question of ethics - how invasive of a procedure does one do as an extra test before it's an issue? My wife is a sonographer - ultrasounds aren't completely diagnostic, only indicative, and a lot of the time the patient will have to go to a more extreme diagnostic to confirm. Should we be skipping the ultrasound and going straight to the biopsy every time?
I know the machines themselves are very expensive, but what are the costs to run a test? Does it draw ruinous amounts of power when running, or are there expendable materials involved?
In your same line of reasoning: if you waved all your legal rights to sue the doctor, and paid for him to prescribe your tests, you would find plenty that will feel comfortable doing so!
(I don’t know the market I am talking about at all, but) Maybe they could incentivize cheap tests by capping the cost per test that can be administered without some large red tape process. The market will provide tests under that cap where possible, so they can be administered more frequently & frictionessly. Patients are thoroughly tested, Doctors cover their butts, and test supply companies get to keep selling lots of tests.
https://drjengunter.wordpress.com/2011/06/03/john-edwards-in...
But because of their insurance coverage, if a mother or baby dies during natural childbirth the doctor is at greater risk for malpractice. So, they will rush mother's into C-section at any excuse (it saves them hours of work too not having to sit through a long labor).
Unfortunately, money and efficiency have taken priority over natural processes.
That is of course true, because C sections are primarily used in high-risk pregnancies and in emergencies. But what you actually care about is the counter-factual: if a given set of deliveries were "natural" rather than a C section, would mortality go up or down? It's hard to develop studies to answer that counter-factual. But there is good evidence that C-section rates are negatively correlated with mortality (i.e. they lower deaths) up to about 20% of deliveries, and have no positive or negative effect beyond that: http://www.skepticalob.com/2017/10/more-wailing-and-gnashing....
Indeed, there is new evidence that "natural" births are in the long term bad for mothers, dramatically increasing the risk of things like incontinence later in life: http://www.skepticalob.com/2018/03/what-if-c-sections-are-be.... As a practical matter, these negative effects will impact far more women than differences (if any) in morality rates.
More importantly: anyone who has had a C section before is likely to deliver all future children via C section; it's not a requirement, but a normal birth after C section is a special arrangement.
Finally: C section itself is a traumatic surgery with long-lasting health effects for the mother. It's routine, but still a big deal.
Medicine can certainly help improve things but if you've been through the birth process multiple times it's clear that doctors try to steer you towards C-section.
Several of them have confided to us that it's primarily because of insurance. The hospital procedures want women in C-section for a few reasons:
1. The procedure is expensive (surgeon, anesthesiologist, etc.)
2. The procedure is fast (30-45min) and can be scheduled allowing the hospital to deliver more babies with less staff
3. The recovery period is longer (2-3 day recovery period as opposed to 8-24 hours for natural birth) generating revenue for longer while only being care from relatively inexpensive nurses.
Sure, there are many times when C-section is appropriate and has saved lives, but it's currently being over prescribed because of hospital guidelines that doctor's need to follow or risk malpractice liability.
The other factor is delivering a child naturally that gets stuck and didn't get enough oxygen but lives is probably the most expensive outcome for doctors because that child can live with severe physical or mental handicaps and need support the rest of their lives.
Your argument is like saying doctors make people sick because someone in a doctor's office is more likely to be sick than someone on the street.
Its precisely a law trying to change money and efficiency that produces this result!
Beyond that, once defensive medicine is the status quo, why would they make a choice to not order their usual defensive panels? They aren't paying for them themselves.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5701901/
“In summary, there exists considerable evidence that medical malpractice reform measures reduce medical malpractice awards and also the losses incurred by medical malpractice insurance companies.”
With that error rate, is it fair to say that the extra tests are truly "unnecessary?"
The primary issue here is the resulting cost.
As the article points out: "about 26 percent of every dollar spent."
You probably won't complain paying 26 cents for a $1 popsicle, but if the same popsicle cost you $100, you might be upset paying $26.
But is not the bigger question: Why is the popsicle $100 when it could have cost $1?
Here is a useful chart to show where the money goes: https://qph.fs.quoracdn.net/main-qimg-d68aea3ca1e466f166752e...
Where do you think malpractice costs fit there?
I personally feel sad everytime malpractice fears enter the discussion of costs - its a tiny, ignorable portion right now of total expenses.
However, to a typical layperson, it sounds like a big deal to worry about but actually distracts the attention costs should be getting.
As a result, I have tried to cover it here: https://www.quora.com/Why-does-one-believe-that-malpractice-...
Real input from real practitioners in the industry in the real world.
Sure, Malpractice overhead exists but it's analogous to a drop in the ocean. There is severe waste elsewhere that need to be handled first.
It's a nosebleed in a patient hemorrhaging blood through a punctured artery.
The argument that ordering extra tests offer doctors "additional defense" in case of a lawsuit is absolute hogwash. If anything, the test results put the doctor at a further disadvanatge wrt defense because they had an additional datapoint they should have considered in their diagnoisis but did not.
The primary issue with Healthcare in the U.S. is cost - for those who have the money and the will to spend it, it's one of the best in the world. A lot of the rich visit the US for their Healthcare needs.
Healthcare in the U.S. is optimized for profit: https://www.quora.com/What-makes-the-US-healthcare-system-so...
This is very wrong as it encourages short term profit seeking behavior which is absolutely the opposite of what healthcare should be (eg: C Sections being preferred over natural but long childbirth)
A for-profit system does not help the doctor/provider either (although it gives an illusion of it) - in such a system, the patient's only recourse is to sue the doctor/provider for damages instead of both parties focusing on the root cause which brought the patient to the doctor/provider in the first place.
Extra Medical Tests might be suboptimal but the real pain points are the marginal costs of each test.
Tests in the U.S. are extremely expensive. There is no standardized pricing for any test in the U.S. unlike the rest of the world.
While the rest of the world has pretty much agreed, for example, that a blood group test might be no more than $10 (In India, it costs 20 cents upto 70 cents at current INR-USD exchange rates), in the U.S. depending on which lab you go to, your insurance coverage, your ability to pay and other factors, you might be billed anywhere from $0 - $2000.
That is completely insane.
Also, labs in the U.S are not setup to take requests from customers directly. There are kits you can order and all that
Everytime I try to send a blood sample to a lab on my own, the lab staff seem to be lost - they want my insurance information, my EHR information, my NPI ID and when I explain to them I am not a doctor they ask me to provide my physcian's who ordered the test. (my physcian didn't order the test - I did).
I have had a few labs bill me outrageous out of network fees because the lab tests were not ordered by an in network provider (because I ordered them and I am not a doctor) and the amount of calls and paperpushing I had to do to correct the billing has made me just give up and let a doctors office handle this.
I can read a lipid panel. I don't need to go to a doctor's office to drive in traffic, wait an hour or more just to draw my blood and have it sent to a lab and then have the doctor read the panel to me. I read spreadsheets every hour of the day. I know what mean median and mode is and the lab result often offer these values anyways as part of the report.
I just need the test report.
Now, if my HDLs are too high and I cannot figure out why, sure, I do need to discuss this with a professional.
The solution to this madness?
An "all payer rate set" system. EVERYONE pays the same for the same procedure. Who pays for the care, while important, comes later, not before.
Excess tests result in a higher number of false positives. This is just math. And those false positives have consequences.
True, but this is an engineering problem:
1. Just because some tests have a higher number of false positives does not mean all tests have a higher number of false positives
2. For those tests that do have a higher number of false positives, the well educated (and paid) professionals are aware and should have measures in place
Eg: Bloom filters are fantastic datastructures to test membership. However, they have false positives. We can control the probability of getting a false positive by controlling the size of the Bloom filter.
This is nothing new in engineering.
> Just because some tests have a higher number of false positives does not mean all tests have a higher number of false positives
No, but doing more tests leads to more false positives, which can lead to disastrous consequences. For example, someone could think they have aids through a false positive and lose their family, or choose to make an abortion, or start consuming preventive dangerous drugs, etc.
Not only that, you can bankrupt someone. It would surprise many how medicine is practiced differently based on available costs!
> For those tests that do have a higher number of false positives, the well educated (and paid) professionals are aware and should have measures in place
Yes, the measure is not to do them unless the symptoms and the DDX fit, along with other criteria.
I wonder what kind of doctor you've been to.
No - this is a math problem. As you do tests on low prevalence populations (inherently what you're doing when you say 'excess tests'), positive predictive value drops. Sure, it will drop more for worse tests, but this is a trait of all tests.
"2. For those tests that do have a higher number of false positives, the well educated (and paid) professionals are aware and should have measures in place"
One of the problems is distinguishing between "This thing is here" and "This is a clinical problem". For example, if I give you the (highly sensitive) PCR test for C. difficile, you may very well have C. difficile in your guts. But that doesn't mean that's what's making you sick.
Similarly, there are a number of cancer screening tests that will detect cancers that will kill you decades after something else does - including, potentially, the surgery to deal with said finding.
However, you do have something of a point. The normal screening tests should be able to be ordered by an insurance company or by the patient themselves. If you don't have any other medical issues that need a doctor there's no reason for a visit unless the tests find an abnormality.
https://www.ncbi.nlm.nih.gov/pubmed/19201500/
“The net effects of medical malpractice tort reform on health insurance losses: the Texas experience”
1. A person can be sued without being guilty in a criminal or civil sense.
2. They are performing extra tests to cover their asses, not to avoid making mistakes.
3. It is clearly not a good thing as shown by the authors of the study.
Most med mal cases are failure to diagnose. That is, the doctor fails to find out what is wrong with you, and you are harmed as a result. If the doctor runs a battery of tests, however, they can properly diagnose the disease and not harm the patient. For a nominal fee, the doctor can save someone's life. This may be bad for the system as a whole, but it is good for the individual patient.
For context, a “simple” failure to diagnose case against a radiologist is going to cost me close to $20,000 out of pocket, and hundreds of hours of my time - not something I do on a whim.
A judges’s admin assistant that I frequently deal with recently retired. Someone asked her what advice she had for attorneys. Her response - don’t file med mal cases because they’re losers, and I practice in one of the top 5 “judicial hell holes” in America.
Common to all these programs is a commitment to provide information and compensation to patients regardless of whether negligence is involved. That lowers the bar of entry for patients and doesn’t pit doctors against them, enabling providers to be open about what happened.
This seems like a much better system.
https://www.propublica.org/article/how-denmark-dumped-medica...
No, it means that someone has a story about an adverse outcome that they think can be blamed on the doctor making a mistake; it doesn't mean either that the adverse outcome actually occurred or that it was caused by the doctor making a mistake.
That's why we have trials.
The doctors are ordering the extra tests to avoid the lawsuit being raised in the first place.
Damb right. Take away a patient's right to hold doctors accountable and things go south very quickly, at least in a for-profit systems.
>>But American doctors often rail against the country’s medical malpractice system, which they say forces them to order unnecessary tests and procedures to protect themselves if a patient sues them.
The patient can only sue if the patient has been harmed. They aren't performing the extra tests in case just wakes up and decides to sue them. They perform the extra tests so that they don't miss something that could harm the patient so badly that they sue.
Doctors also forget that, again only in the US system, patients often must sue. A harm caused by malpractice isn't always covered by insurance. Patients need to find the money somewhere. Or if an insurance company does cover, the insurance company will then sue the malpracticing doctor (google "subrogation").
A few years ago several states had liability caps ready to become law (iirc $250k). Then a young woman lost both her breasts after a mixup in test results caused her doctor to recommend a double mastectomy. But at least she could still function relatively normally and the injury was not a financial burden. Imagine the costs associated with a 20yo confined to a wheelchair for the next 60+ years. Setting aside medical expenses, 250k buys you maybe four or five converted vans. While some cases are rightly suspect, many of the multi-million dollar settlements really do get spent on legitimate costs.
FTA: > They found that the possibility of a lawsuit increased the intensity of health care that patients received in the hospital by about 5 percent — and that those patients who got the extra care were no better off.
The healthcare system in the US is insane.
What? In the USA, it’s the customer who eats the cost of the test. 1. The doctor tells you to go do all these tests. 2. Neither the doctor, the testing lab, the hospital, or the insurance company knows which ones will be covered by insurance. 3. You do the tests. 4. Insurance company, months later, says “Surprise, sucker! We won’t cover these tests so you have to pay $N,000!” 5. The lab and doctor says “You signed the paper agreeing to cover the costs. F-you Pay me.”
Trading 5-100 of your fathers cases for 1 life is IMO a worthwhile trade as we want a system heavily biased toward savings extra lives.
PS: It's the rate of false positives vs saved lives that cause wasted treatments not the number of tests.
Unfortunately this is not how good medicine is practiced. Medicine is not a straightforward hard-science. Tests are expensive, patients dont follow through, they have personal consequences, chances you got something are 100% but chances you got something specific are 0.0001%.
It is digestible for a doctor to have liability but compare it to other professions: does a web developer that botched a UI for a bank transfer and introduces some consequence go to jail for robbery? Doctors have too high a burden. And a decision or an oversight that makes someone die could be as stupid as a misprint on a paper.
It's then up to the physican to pay costs for legal defense (i.e. medical malpractice insurance). If the patient is wrong, then the physican can counter-sue. This whole dance is very expensive and, worse, time consuming (which, for a doc, is the ultimate resource). This cost ends up on the patient ad the doc must raise prices to account for the new insurance.
Hospitals have staff lawyers whose job it is to deal with lawsuits. So it's not terribly time-consuming for doctors outside of depositions.
It's safe to say that this is one of the reasons that doctors move from private practice into working in a hospital system. But it's also not a major one (dealing with insurance companies is the major factor).
For example, a plaintif’s attorney might drag everyone into a lawsuit they can over a disappointing surgical result. The jury could be persuaded that an operating room nurse is 1% liable for a failed operation and the surgeon 99% responsible. If the surgeon can’t pay their part of a two million dollar judgement (brand new doctor perhaps) the nurse may end up paying the two million (maybe the nurse is married to a software engineer).
As I understand it, the portion of additional costs that the doctor eats and the portion that they charge to their patients actually depends on the elasticity of the market for the doctor's medical services. I can't comment on the market for the hypothetical doctor's medical services (in the U.S. AFAIK that market is very complex and opaque, and it probably depends on the doctor, location, and the specific service), so speaking generally about sellers and buyers:
The portion of a cost increase that is eaten by the seller or charged to the buyer depends on elasticity. Computer memory is highly elastic: If your costs go up and you try to increase your price $10/DIMM, then I'm going to buy my DIMM someplace else (unless your DIMMs are very special); a small change in price causes a large change in demand. Superstar developer salaries are highly inelastic: If the developer's costs increase (a new baby!) and they ask for more money, I probably have to give it to them because I'm not going to find a replacement. You see that more publicly with superstar athletes: Cristiano Ronaldo is irreplaceable; the market for his services is at the extreme of inelasticity; he can almost name his price for running around in shorts, playing games.
> . . . at least in a for-profit systems.
> The patient can only sue if the patient has been harmed.
No, the patient can sue for whatever reason they want to. The doctor's malpractice insurance is going up regardless. Even a completely frivolous lawsuit will cost the physician real money out of his or pocket for years to come, not to mention the cost (if they choose to pursue it) of counter-suing the patient.
You still have to prove damages. Which means getting treatment from another hospital for whatever mistake was made, then proving that the mistake was caused by the treatment you received at another hospital.
As stated elsewhere, my partner has been named in dozens of malpractice lawsuits and every one she was deposed for she felt was legitimate. There were a few where she told me privately that she hopes the people win.
Check your rules of civil procedure. Patients cannot just invent reasons to sue. The case must hit several benchmarks before a doctor ever has to respond, let alone be deposed. Dismissal for failure to state a claim deals with the truly junk lawsuits.
