Justinian Lane

A Doctor’s Stance on Tort “Reform”

I really enjoyed this article.  You should read it.

Defensive medicine is just one of the supposed systemic ills that doctors, doctors' lobbies and doctors' insurers invoke when they shill for what they call malpractice reform. Proponents of reform say that defensive medicine, frivolous lawsuits and high premiums are behind the surge in healthcare expenses. They insist that malpractice costs are forcing doctors to close their doors and depriving patients of care. Recently, three past presidents of the American Medical Association coauthored an opinion piece for the Wall Street Journal that bundled all of these arguments into an attack on the public option. Their piece attempted to shift the blame for America's healthcare crisis away from private insurers and onto a supposed scourge of ambulance chasers. "The nation needs comprehensive medical malpractice reform," they wrote. "It is the surest and quickest way to slow down the rising cost of healthcare."

Their refrain is familiar to anybody following the healthcare reform debate. The only problem is that it's not true. There's nothing "sure or quick" about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare's price tag, and rising malpractice premiums have had very little impact on access to care.

Let's look at the numbers. First, based on the current rhetoric, it's easy to assume we have an epidemic of malpractice suits in America. We don't.

Source: Healthcare Reform -

And because I know some of you are too lazy to read the whole thing, here’s the conclusion:

“Tort reformers neglect the fact that malpractice reform won't save one extra life. To make that difference, insurers, doctors and their lobbyists like the AMA need to find ways to improve patient safety. So for those who push tort reform as a panacea for a sick healthcare system, working to prevent injuries is a much more noble pursuit than writing up baseless arguments for the back pages of a newspaper.” (Emphasis added.)

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Posted at 11:16 AM, Oct 29, 2009 in Medical Malpractice
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I disagree with the statement that malpractice reform will not save lives. Right now defensive medicine costs time, resources and money that could be otherwise used to help others. For the price of one defensive head CT we can vaccinate 40 children. By decreasing low yield or defensive scans we can see more, treat more and save more people than we can without it.

Posted by: throckmorton | October 29, 2009 11:35 AM

Assume that a doctor decides not to run that "defensive head CT." Tort reform won't magically give the vaccination money to the 40 kids. Nor will it deter doctors who order CT tests because they own the CT machine and want the profits.

If doctors would tell the insurers that they don't feel the CT scan is medically necessary, the insurer wouldn't cover the procedure. Then, the doctor can ask the patient if he or she wants to pay the cost out of his or her own pocket. 9,999 times out of 10,000, the answer will be no. There's no malpractice suit if it was the patient's choice not to have the procedure done.

Posted by: Justinian Lane | October 29, 2009 2:04 PM

I wish it were as simple as saying that a test was not medically necessary, the problem is that medicine is practiced by what is "medicolegally necessary". I personally have been involved in a case where a patient decided not to get a MRI. The spine surgeon was sued and the plaintiff attorney argued that the surgeon did not explain well enough the reason for the scan, otherwise the patient would not have decided against it. This is what we as physicians are up agaisnt. It is a D if you do, and a D if you dont. I would love your insurace example if we could use evidence based medicine to determine what is effective and what is not and establish real standards. The problem is that both physicians and insurance companies know, that you can be sued for not getting the scan, test etc.

As to the doctors owning the scanners. The pateint is going to end up scanned for the reasons above. Eitherway, they are going to get scanned regardless if it is in the physicans office, hospital or ED.

I agree that tort deform will not magically give the money to the kids but what it will do is change how medicine is practiced and allow it to see more for less. We have finite resources, if you can reduce the number of defensive tests, this frees up money which lets you do more with it.

A term in medicine is the "Million dollar work up". We can blow a million on every little thing with defensive low yield testing or we can use that million to help a lot more people.

Posted by: throckmorton | October 30, 2009 12:22 PM

Correct me if I'm wrong, please. Insurers only pay for procedures that *could* be medically necessary. (For example, they'll never pay for a pregnancy test for a man.) If an insurer chooses to pay for an MRI, that means it is within the standard of care to run one. Doctor X may not think an MRI is necessary, but Doctor Y might. Neither is right or wrong, because the standard of care is a fuzzy term that doesn't have hard, fixed rules that are not open to interpretation. Is that reasonbably accurate?

I agree with you from a societal standpoint that the million dollar workup is a bad thing. On the other hand, if it is me or my loved ones, I want the million dollar workup. I suspect so do most people. And again, if a guy with "Cadillac insurance" (or a very deep pocket) chooses not to get the million dollar workup, the money won't magically help others who need it.

I'm not necessarily against proposals to change the standard of care to make it harder to win in a malpractice case. I'm against proposals that do things like cap damages at $250,000 for someone who is the victim of egregious malpractice. True reform wouldn't make it harder for the catastrophically injured to collect reasonable sums of money, it would make it harder for people with questionable lawsuits to collect at all.

That said, if someone were to argue for elimination of all malpractice lawsuits in exchange for a single-payer, taxpayer-funded healthcare system that also established a workers-comp style system of no-fault payouts for negative outcomes, I'd listen to their argument. I personally would probably opt-in to such a system.

Posted by: Justinian Lane | November 2, 2009 9:54 AM