President Obama; If You Really Want To Reduce Healthcare Costs, Effectively Reform The Medical Malpractice Tort System: Part 4

Stanley Feld M.D.,FACP,MACE

President Obama, there are other consequences of the present malpractice liability system that cannot measured in dollars or impact. In order to avoid potential law suits physicians are avoiding high risk patients and high risk patient procedures. The result is a decrease in patient access to necessary care.

The measured costs of defensive medicine can be calculated from the Massachusetts Medical Society survey.

“Physicians practice defensive medicine because they don’t trust the medical liability system. This survey should provide a strong impetus for legislative, business, and health care industry initiatives promoting fundamental liability reform.”

It is essential to introduce effective and fundamental liability reform to reduce the practice of defensive medicine, decrease costs and improve access to care.

The Massachusetts Medical Society’s survey of physician concerning defensive medicine also point out the restriction of access to care as a result of the malpractice environment.

“The survey found that 38 percent of responding physicians reported they reduced the number of high-risk services they performed, with orthopedic surgeons (55%), obstetrician/ gynecologists (54%), and general surgeons (48%) reporting the highest frequencies.”

These actions by physicians’ specialties are a natural reaction to the malpractice environment. It also reduces the healthcare system’s capacity to care for sick patients.

“28 percent of physicians in the sample reported reducing the number of high-risk patients they saw, with obstetrician/gynecologists (44%) and the surgical specialties (37–42%) much more likely to reduce their number of high-risk patients.”

In many small or medium sized communities there is little or no access to medical or surgical specialists to take care of high risk patients. President Obama, rather than increase the quality of care, as you have promised, the quality of care in some communities will decrease.

Other surveys by the Massachusetts Medical Society confirm their survey.

“In its annual Physician Workforce Study over the last five years, the Society has found that an average of 44%-48% of physicians in the state reported that they are altering or limiting their practices because of the fear of being sued.”

The 2008 workforce study’s results were worse than the Massachusetts Defensive Medicine survey. More than half of physicians in seven specialties said they have progressively limited their practices, the fear of a frivolous malpractice suit being the primary reason. It is natural for people to adjust to their environment.

“Neurosurgery practices (76%), urology (75%), emergency medicine (66%), obstetrics/gynecology (57%), family medicine (53%), general surgery (51%), and orthopedics (51%).”

President Obama, what should you do to neutralize the negative impact of defensive medicine?

First, do not believe the arguments of the trial lawyers. The claim that malpractice reform will harm patients "by limiting their ability to seek compensation through the courts" is a smoke screen to protect their profitability in law suits.

The medical liability system is inefficient. It does not compensate patients experiencing medical errors very fairly. In fact more than 50 cents on every compensated dollar goes to pay lawyers and the courts. Patients may wait year to receive a single penny. The wear and tear of a malpractice suit on patients experiencing medical errors and physicians being sued is enormous.

The answer is not to leave it up to congress to work it out. Congress has a 30% approval rating. Congress is also composed mostly of lawyers. You are our leader. You are the one who must outline the change that is fair to patients, the government, and physicians.

The fundamentals of change should include the following:

1. Decrease the profitability of malpractice suits for attorneys.
2. Invest in a culture of patients’ safety at every healthcare enterprise.
3. Promote full disclosure to patients about adverse events quickly without legal consequences.
4. Promote apology to patients without legal consequences.
5. Provide fair compensation to patients for medical errors.
6. Professional mediation and arbitration to resolve disputes quickly and dismiss frivolous claims abruptly.
7. Create a body of judges immune from liability to adjudicate malpractice suits. The body should be composed of physicians and lay leaders. The best judge of physicians medical errors are other physicians if they were freed of adverse countersuit
8. Create a system of no fault malpractice insurance.
9. Place limits on patient compensation and expedient rate of compensation.
10. Eliminate the adversarial nature of the claims.
11. Build trust between patients and physicians.

Defense attorneys will hate most elements of this proposal because it threatens their vested interest and profitability. I suspect they will fight them with tooth and nail.

President Obama, if you implement these proposals to fundamentally change the medical liability system you would go a long way to reduce the practice of defensive medicine and a yearly wasted cost of $700 billion dollars to the healthcare system.

The opinions expressed in the blog “Repairing The Healthcare System” are, mine and mine alone.