Stanley Feld M.D., FACP, MACE
I am extending my discussion on the importance of malpractice reform because politicians ignore the potential costs and decreased access of care resulting from the present system.
In 2003, Texas Governor Rick Perry and the Texas legislature unenthusiastically changed tort reform laws in Texas.
I thought it was inadequate tort reform. It turned out that the meager reform has had great results.
Rick Perry and the Texas legislature ended plaintiff attorneys’ practice of venue shopping for friendly judges.
They also put a cap of $250,000 on noneconomic damages like pain and suffering.
These reforms have changed the malpractice climate in Texas. The reforms limited plaintiff’s attorneys’ profitability on frivolous liability claims.
Texans believe that because of these reforms and the lack of a state income tax, Texas has become the country’s best state for economic growth and job creation.
“Perhaps the most visible economic impact of lawsuit reforms is the benefits experienced by Texans who have better access to high-quality healthcare.”
“Doctors and hospitals are using their liability insurance savings to expand services and initiate innovative programs; those savings have allowed Texas hospitals to expand charity care by 24%.”
The medical malpractice business for plaintiff’’s attorneys has dried up in Texas. plaintiff’s attorneys are moving to other states.
Physicians are applying for licenses to move to Texas from other states.
“In 2001, according to the American Medical Association, Texas’ ranking in physicians per capita was a dismal 48th out of 50.”
“Beginning in 2003, physicians started returning to Texas. The Texas Medical Board reports licensing 10,878 new physicians since 2003, up from 8,391 in the prior four years.”
“Dr. Perryman, subsequent to the issuance of his Report, informed TLR Foundation that at least 1,887 of those physicians are specifically the result of lawsuit reform.”
The Texas Hospital Association reported a 70% reduction in the number of lawsuits filed against the state’s hospitals.
Medical liability insurance rates declined. Many doctors saw average rates drop 20% to 50%.
The American Medical Association removed Texas from its list of states experiencing a liability crisis; marking the first time it has removed any state from the list.
A survey by the Texas Medical Association also found a dramatic increase in physicians’ willingness to resume certain procedures they had stopped performing, including obstetrics, neurosurgical, radiation and oncological procedures during the Texas malpractice crisis.
Two simple changes in the tort laws made malpractice suits unprofitable for plaintiff attorneys.
Rick Perry has been so impressed with the results of his tort reforms that he wanted to extend his state’s impressive tort reform record.
According to the Pacific Research Institutes estimate it is at least $242 billion dollars a year. I think the cost is closer to $750 billion dollars.
President-elect Trump, there are other consequences of the present malpractice liability system in the U.S. that cannot be measured in dollars.
One is alawsuits emotional wear and tear on both patients and physicians,
In order to avoid potential lawsuits physicians are avoiding high-risk patients and high-risk patient procedures. The result is a decrease in patient access to necessary care.
Unfortunately, the mainstream media has published only meaningless sound bites about malpractice reform significance.
The survey’s significance has not had the impact on policy it should.
The authors state that the dollar estimates do not include the diagnostic procedures, hospital admissions, specialty referrals and consultations, or unnecessary prescriptions by physicians in specialties not included in the study.
The eight specialties surveyed represent only 46% of the physicians in the Massachusetts. The real costs to the healthcare system from the practice defensive medicine in the state of Massachusetts are much higher.
I believe the costs of defensive medicine in many other states are also much higher because in many states malpractice awards are higher. This encourages litigation.
President-elect Trump, defensive medicine is a huge burden nationally to the healthcare system. Its costs will undermine any attempt at healthcare reform. You must take medical malpractice liability reform seriously. There has to be a fundamental change in the structure of adjudication.
The survey’s findings must be studied carefully. The physicians surveyed estimated their percentages for defensive medicine testing to avoid lawsuits.
The real percentages can be studied objectively using big data. . Nonetheless the current estimates reveal unsustainable waste in our dysfunctional healthcare system.
Radiological imaging is one tool overused by physicians defensively to avoid litigation. Physicians feel they must test everything even if the probability of a positive result is insignificant.
“Plain Film X-Rays: An average of 22% of X-rays were ordered for defensive reasons.”
“CT Scans: An average of 28% of CT scans were motivated by liability concerns, with major differences among specialties.”
About 33% of scans ordered by obstetricians/ gynecologists, emergency physicians, and family practitioners were done for defensive reasons.
The total number of unnecessary CT scans needs to be calculated along with its costs in order to understand the significance of the percentage presented.
The health policy solution should not be to lower the reimbursement for CT scans. The solution is to fix the medical malpractice liability system.
MRI Studies: An average of 27% of MRIs were ordered for defensive reasons, with significant differences by specialty.
Obstetricians/ gynecologists, general surgeons, and family practitioners reported the highest rates, with the lowest rates by neurosurgeons and emergency physicians.
Ultrasound Studies: An average of 24% of Ultrasounds were ordered for defensive reasons. Orthopedic surgeons (33%) and obstetricians/gynecologists (28%) reported the highest rates, with neurosurgeons (6%) and anesthesiologists (9%) the lowest.
I believe neurosurgeons are underestimating their use of radiologic procedures in order to look good. Neurosurgery is one of the specialties with the highest malpractice rates.
Please note that obstetricians/gynecologists take no chances and order the most procedures for defensive purposes.
An average of 18% of laboratory tests were ordered for defensive reasons, with emergency physicians (25%) reporting the highest rates and neurosurgeons (7%) the lowest.
Specialty referrals, consultations and hospitalizations are overused the most for defensive reasons. No one wants to take a chance and send the patient home even if the indication for hospitalization is small.
Specialty Referrals and Consultations:
“An average of 28% of specialty referrals and consultations were motivated by liability concerns, with significant differences by specialty.
Obstetricians/gynecologists reported that 40% of their referrals and consultations were done for defensive reasons, and anesthesiologists and family practitioners said that 33% of their referrals and consultations were done for the same reasons.”
An average of 13% of hospital admissions were motivated by liability concerns, with surgical specialties reporting lower rates than the other specialties.
The cost of defensive medicine is very high and extremely wasteful.
The repair of the dysfunctional malpractice system is simple. The system must decrease financial incentives for plaintiff’s attorneys to file frivolous lawsuits.
The opinions expressed in the blog “Repairing The Healthcare System” is, mine and mine alone.
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