A New York Times oped article today urges that medical malpractice litigation is serving a positive role in efforts to reduce the unfortunately vast amount of medical malpractice that occurs annually. Happily, the oped is backed up by a research paper and so it's not just opinion. 

The author, Joanna C. Schwartz, is a UCLA law professor with no apparent ties to any of the usually advocating constituencies (plaintiff's lawyers, hospitals, doctors or insurers.)  It appears instead she is interested in litigation and its impacts.  Thus, Professor Schwartz' bio includes federal clerkships, pro bono work, overseeing clinical trial work by students and an article on the role of lawsuits in decision making by law enforcement officials:  Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA Law Review 1023 (2010). 

Professor Schwartz' oped, titled Learning from Litigation -  includes the following observations:  

"What accounts for these changes? Several factors appear to have overcome historical resistance to transparency, including widespread laws requiring disclosure to patients and confidentiality protections for internal discussions of error. Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation.

Abstract:      

Judging by the abstract and the oped (I've not read the full article), the research findings appear to jibe with prior research on medical malpractice myths - as opposed to war stories. The research shows that medical malpractice suits are best avoided by acknowledging errors, apologizing, and paying compensation in appropriate cases. 

• Print
• Comments
• Trackbacks
• Share Link

A new JAMA Internal Medicine commentary article highlighted by PopTort via HuffPost makes for interesting but depressing reading in highlighting the volume of medical errors that may be out there. Set out below are excerpts from the article - note especially the words in bold; the numbers are footnote references, which are excluded here but available in the free full text version. 

• Print
• Comments
• Trackbacks
• Share Link

Who needs a real crisis - just create one by repeatedly claiming there is a crisis. Sooner or later, the repetition takes over and the crisis becomes real. See Thinking, Fast and Slow for a recent statement of the impact of message familiarity. 

But myths are myths, and it's always been a myth to say that medical malpractice suffered an explosion of claiming. On that topic, the Empirical Legal Studies blog brings news of more evidence disproving the myth of a the supposed medical malpractice crisis. Note also - the study reported below is a wide study in terms of years and numbers, and is not based on a single incident story of what happened to Dr. X or at hospital Y. In court, insurers argue that single incident stories are "junk science" and not admissible to prove anything. Instead, they say, the only real evidence comes from broad studies over much time. 

• Print
• Comments
• Trackbacks
• Share Link

Caps on damages for medical malpractice are back in the news. The renewed arguing arises because the Missouri Suprem Court just struck down a so-called "tort reform" statute that limited damages in medical malpractice cases. The Supreme Court's opinion relied on the right to jury trial section of the Bill of Rights of the Missouri Constitution. The court held: "any limit on damages that restricts the jury's fact-finding role violates the constitutional right to trial by jury." 

The ruling produced the usual outpouring of claims that striking down the cap will cause doctors to leave the state, etc. In fact, however, the actual evidence is that medical malpractice remains a rampant problem, and that actual medical malpractice is best handled by apologizing quickly and offering reasonable compensation, as described in this prior post with links to the underlying studies, including this study from the University of Michigan and various papers downloadable from the home page for Benjamin Ho at Cornell.  The "caps" argument also is undercut by an ardent "conservative" - Ted Frank. In this post on Point of Law, he stepped up to the plate and acknowledged that the evidence in Texas indicates tort reform did not make any difference in the presence of doctors in the state. That kind of admission is rare but good to see.

The "caps" advocates also fail to talk about what they can do to cut down on medical malpractice, a topic explored by Cornell. Likewise, the tort reform advocates likewise fail to explain how there is any degree of morality or fairness in imposing caps on persons catastrophically injured by obvious negligence, as exemplified by this case.  More generally, a new empirical study from a Cornell researcher  (Michael Frakes) knocks down the unsupported argument that "defensive medicine" causes extra expense for doctors "to avoid being sued."  

Conclusion? It appears that medical malpractice reformers would lose if a Daubert hearing were held to determine if there is any evidence to support their arguments for caps. Society certainly would be better in human and financial terms if medical malpractice decreased. So, perhaps it would be best to examine the medical malpractice facts in a rigorous way and avoid the time and angst wasted on "caps" that do not work and impose terrible hardships on some persons who are badly injured or killed. Focusing on real issues, however, does not work well for some members of the cottage industries built around arguing for and against "tort reform." Hats off to those who, on the other hand, do actually look at the facts, and draw real world conclusions in a bi-partisan fashion.

(If anyone sends evidence to support the claim that caps work, I''ll happily publish it as an addition to this post.)

• Print
• Comments
• Trackbacks
• Share Link

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 

• Print
• Comments (1)
• Trackbacks
• Share Link

"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. 

• Print
• Comments
• Trackbacks
• Share Link

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. 

• Print
• Comments
• Trackbacks
• Share Link

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

____________________________________________________________________________________

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

• Print
• Comments
• Trackbacks
• Share Link

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.

• Print
• Comments
• Trackbacks
• Share Link

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."

• Print
• Comments
• Trackbacks
• Share Link