Business Insurance has a new article by Louise Kertesz on the best strategy for dealing with medical malpractice - admitting fault, paying the claim and moving forward. The topic truly matters because malpractice in general continues at alarming rates as described by the New England Journal of Medicine, and specific examples are sometimes horrific, as illustrated by this recent example. Meanwhile, various "tort reformers" continue to posture - incorrectly - that the problem is caused by "trial lawyers" ginning up claims. While certainly there are some bogus suits every year, I've yet to find any empiric evidence supporting the claims of tort reformer claims. Instead, one finds that medical malpractice is happening, and hospitals and insurers are failing to stop it from happening.  When conservative Fred Thompson was seeking the Republican nomination for President of the United States, he made a point of acknowledging that damages caps are bad policy, and an arrogant and unfair form of government intervention, which conservatives supposedly abhor. 

The advantages of honesty and apologies are in a way old news - the point in general is made here by a German study of corporate response to its own mistakes, as highlighted here by Conglomerate. As to medical malpractice in particular, the University of Michigan proved the point in a 2009 article reporting its experience. See A Better Approach to Medical Malpractice Claims? The University of Michigan Experience, by Richard C. Boothman, Amy C. Blackwell, Darrell A. Campbell, Jr., Elaine Commiskey, and Susan Anderson. The article is published online, and collects a wide range of research on the subject. The abstract and cite are as follows:

ABSTRACT: The root causes of medical malpractice claims are deeper and  closer to home than most in the medical community care to admit. The University of Michigan Health System’s experience suggests that a response by the medical community more directly aimed at what drives patients to call 

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"Tort reformers" (usually insurance companies)  often argue that damages caps of $1 million or $ 500,000 are "fair."   Consider such limits as applied to the following victim of medical malpractice - the facts are taken verbatim from this article in the December 9, 2011 issue of The Chicago Daily Law Bulletin.

By the way, the hospital's defense firm is one of Illinois' most respected defense firms. 

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The posturing and faux debating is ongoing here (plaintiff side) and here (defense side) as to whether or how the federal government could pass a law governing medical malpractice. It's certainly ironic that some on the defense side suggest the federal government cannot require purchase of health insurance, but do suggest that it regulate an area of tort law traditionally controlled by the states. 

These faux debates lack a key ingredient. A knowledgeable referee pushing both sides to the real issues instead of sending out a stream of soundbites and position papers that argue about strawmen. 

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There are many ironies and inconsistencies in the world of arguments on tort law and "tort reform." One of the ironies is that proponents of "tort reform" often are inconsistent in their approach to evidence and outcomes.

How so ? For one, "tort reform" advocates typically also are fond of demanding that juries and courts make decisions based only on "gold standard" evidence. That is, they object to admitting anecdote, animal studies or other information unless backed by double-blind empiric studies. That, they say, is "evidence." For evidence, see most any defense-side Daubert challenge in any case.

When it comes to arguing for tort reform, the advocates often argue that imposing strict limits on medical malpractice claims will reduce health care costs by reducing so-called "defensive" medicine. But where is the evidence to prove these arguments? To my knowledge, there is no such evidence, and I do keep my eye open while reading. But what one does find is evidence indicating that "medical malpractice reform" in fact does not lower health care costs.

For the most recent example, see this New York Times article of today by Kevin Sack, and this new study from four law professors. And, happily, the study focuses on Texas, a state much in the news today because of Mr. Perry's many claims. The abstract states:

Abstract:      
Will tort reform “bend the cost curve? Health care providers and tort reform advocates say ‘yes.’ They insist that defensive medicine is responsible for hundreds of billions of dollars in health care spending every year. If providers and reform advocates are right, once non-economic damages are capped and lawsuits are otherwise restricted, defensive medicine will substantially decline and health care spending will fall dramatically. 

We evaluate the potential of tort reforms to reduce health care spending by studying how Medicare spending in Texas changed after the state adopted a comprehensive package of tort reforms in 2003, including a fairly strict cap on non-economic damages. Using longitudinal data on med mal claim rates and on health care spending, we first compare spending trends in Texas to spending trends in neighboring states and the nation as a whole. Post-reform, we find no evidence of reduced Medicare spending in Texas relative to these comparison groups. We then compare health care spending in Texas hospital service areas (HSAs) with high med-mal pressure to Texas HSAs with low med-mal pressure. Pre-reform, we find no evidence that Medicare spending was higher in high-pressure HSAs than low-pressure HSAs, and no evidence that spending grew faster in high-pressure HSAs. Post-reform we find no evidence that high-pressure HSAs experienced any change in spending trends, relative to low-pressure HSAs. 

In sum, we find no evidence that Texas’ 2003 tort reforms “bent the cost curve.” (emphasis added)

Keywords: defensive medicine, medical malpractice risk, tort reform

JEL Classifications: I11, I18, K13, K23, K32

Working Paper Series

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Please let me know if you know of any contrary "evidence" - I'll be glad to publish it in an updated post.

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ScienceDaily strikes again by highlighting an interesting new article from Lancet (one of the finest medical journals in the world). The article is by a medical historian who focuses on medical negligence. Here's the summary from the author's university press release:

"The UK coalition government's planned NHS and welfare reforms, and their use of 'nudge' theory, hark back to ideas on welfare and recession from the end of the nineteenth century, according to studies by a University of Leicester historian whose research paper has recently been published in the Lancet.

Dr Kim Price’s article entitled, ‘The crusade against out-relief: a nudge from history’ is his second in the Lancet within a year drawing parallels between past and present medical negligence.

Dr Price, a Wellcome Trust Research Fellow in the School of Historical Studies,  commented:   “Broadly speaking, I am interested in medical negligence under state medicine and I have focused on the pre-NHS (pre-1948) welfare system in the UK.

“The instability of doctor-patient relations has led to a fragile balance of power that is by no means set for the foreseeable future.

“The welfare debate has been divided for centuries by ideologically-driven attitudes to philanthropically, privately or publicly funded medicine.

“I see medical negligence as a complex relationship between time and place and, to varying degrees, society, law, ethics, medical practice, health professionals, and patients.”

In his paper in the Lancet, Dr Price argues that the UK’s Coalition Government has begun to tackle the annual deficit with the language and policy aims from the recession of 1870.

In the late 19^th century the Conservatives instigated a policy to cut back welfare expenditure and lessen reliance on poor law out-relief.   This included cutting medical extras and payments to lone mothers, widows, the elderly, the chronically sick, and people who were disabled or had mental illness.

The result, Dr Price believes, lowered the health of many families and increased the number of people who could no longer be supported at home.

Dependency was criticised by both government and ratepayers, until by the 1880s the Victorian obsession with thrift and self-help had taken hold throughout the voting classes. Philanthropy and charity, however, could not compensate for government aid, and institutional care drove up national expenditure.

Dr Price argues that, under current UK Coalition government proposals for GP consortia, and its potential conflicts of interest, the doctor-patient relationship is in peril of shifting too far in favour of doctors and undermining the trust of patients.

This too harks back to 19^th century Poor Law doctors who had to choose between their private and public patients, resulting in widespread neglect of the poor. As a result relations between doctors and poor patients suffered.

At the turn of the 19^th and 20^th centuries the drive to cut welfare backfired and fuelled change.   Liberal (and later, Labour) reformers raged against the “false economy” of a nation without welfare so that by the start of the 20th century, the tide had begun to turn.

The people’s health took centre stage when working class people as a whole were allowed to vote, resulting in a series of Acts which led towards the creation of the National Health Service in 1948."

Dr. Price's other papers and contact information are highlighted here in a press release by his university.

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Updated with Newly Available Link to NEJM Article

Thanksgiving of course is an excellent day to give thanks in general for good health. Now, here's another reason to be thankful for good health. 

The New England Journal of Medicine published on Thanksgiving a major new study  on medical malpractice. Sadly, the study finds that medical malpractice is continuing at high levels. The study is summarized in this Denise Grady article in the NYT. Ms. Grady's article also includes a link to and brief summary of the major 1999 study that reached the same general conclusions.  Some key excerpts are below.  The full text of the NEJM article is  on-line here, and is free.

Best wishes to all for a joyous and peaceful Thanksgiving.

And, after the holiday, remember to cite the  new study when someone blames lawyers for the "med mal crisis."  Lawyer bashing is easy, but wrong. In general, doctors and hospitals are creating their own problems, some with obvious links to short-staffing.

Dr. Landrigan’s team focused on North Carolina because its hospitals, compared with those in most states, have been more involved in programs to improve patient safety.

But instead of improvements, the researchers found a high rate of problems. About 18 percent of patients were harmed by medical care, some more than once, and 63.1 percent of the injuries were judged to be preventable. Most of the problems were temporary and treatable, but some were serious, and a few — 2.4 percent — caused or contributed to a patient’s death, the study found.

The findings were a disappointment but not a surprise, Dr. Landrigan said. Many of the problems were caused by the hospitals’ failure to use measures that had been proved to avert mistakes and to prevent infections from devices like urinary catheters, ventilators and lines inserted into veins and arteries."

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