This week, our brand new U.S. House Judiciary Committee Chairman Lamar Smith (R-Texas) announced that he'll be convening hearings soon "to examine the constitutional concerns surrounding ObamaCare and the role medical malpractice reform can play in reducing health care costs." In other words, we once again have to hear about the Republicans' one big health care idea -- taking away injured patients' legal rights.
As usual, Chairman Smith grumbled about what he called the "widespread practice of 'defensive medicine' that drives up the cost of health care." Ah, here we go again.
We presume Chairman Smith was referring to surveys like the one which appeared in the June 28, 2010, Archives of Internal Medicine, another in a long line of anonymous doctor "surveys" conceived by organized medicine, seeking responses to questions about these very hot button political topics: "defensive medicine" and medical malpractice lawsuits. Like all such surveys, its purpose was to give the impression of a scientifically conducted poll so the results could be trotted out before lawmakers to demonstrate support for the pollsters' pre-defined legislative agenda -- i.e., restrictions on patients' legal rights.
While anonymous doctor surveys provide the principal foundation for the argument that widespread "defensive medicine" exists, credible organizations who have looked into the issue have had a very hard time identifying pervasive "defensive medicine," especially when managed care companies are paying the bill. For example, the Congressional Budget Office found tiny health care savings -- "0.3 percent from slightly less utilization of health care services" -- if severe tort reform were passed nationally. According to the CBO, if there is any problem at all, it's with Medicare, specifically its emphasis on "fee-for-service" spending, whereas private managed care "limit[s] the use of services that have marginal or no benefit to patients (some of which might otherwise be provided as 'defensive medicine')."
But there is another issue. In these anonymous surveys, doctors never actually identify specific tests or procedures they have conducted for the primary purpose of avoiding a lawsuit, let alone a service they would no longer perform if severe "tort reform" were enacted. There is no better illustration of this than the June 1, 2009, New Yorker magazine article called "The Cost Conundrum; What a Texas town can teach us about health care," by Dr. Atul Gawande. This widely-circulated article explored why the town of McAllen, Texas "was the country's most expensive place for health care." The following exchange took place with a group of doctors and Dr. Gawande:
"It's malpractice," a family physician who had practiced here for thirty-three years said. "McAllen is legal hell," the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.
That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars.Didn't lawsuits go down? "Practically to zero," the cardiologist admitted. "Come on,' the general surgeon finally said. "We all know these arguments are bullshit. There is overutilization here, pure and simple." Doctors, he said, were racking up charges with extra tests, services, and procedures.
In fact, there is even more reason to be skeptical. That is because if these doctor surveys are to be believed, they would suggest that nearly every doctor in America is violating the law. And we know that is not correct.
A doctor who bills Medicare or Medicaid for tests and procedures done for a personal purpose -- e.g., lawsuit protection -- as opposed to what is medically necessary for a patient, is committing fraud under federal and state Medicare/Medicaid programs.
The Medicare law states:
It shall be the obligation of any health care practitioner and any other person . . . who provides health care services for which payment may be made (in whole or in part) under this Act, to assure, to the extent of his authority that services or items ordered or provided by such practitioner or person to beneficiaries and recipients under this Act . . . will be provided economically and only when, and to the extent, medically necessary." 42 U.S.C. § 1320c-5(a)(1).
"[N]o payment may be made under part A or part B for any expenses incurred for items or services . . . which . . . are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member." 42 U.S.C. § 1395y(a)(1)(A).
Providers cannot be paid and/or participate in the Medicare program unless they comply with these provisions, and they impliedly certify compliance with these provisions when they file claims. Thus, if they are not in compliance, the certifications and the claims are false. Providers who do not comply and/or file false claims can be excluded from the Medicare program.
Perhaps more importantly, the Medicare claim form (Form 1500) requires providers to expressly certify that "the services shown on the form were medically indicated and necessary for the health of the patient." If the services are, to the doctor's knowledge, medically unnecessary, the claim is false.
We do not believe that most physicians in the country are submitting false claims to Medicare and Medicaid. We believe most physicians are good doctors who order tests and procedures for the very reasons that they certify to Medicare and Medicaid -- because they are medically indicated and necessary for the health of the patient. Perhaps some doctors do commit fraud, and clearly "fee-for-service" medicine creates a perverse incentive for providers to do too many tests. But litigation is not the problem here. It is the lesson of history that even when you completely remove litigation as a factor, the extent of tests and procedures that are ordered do not change. Enacting so-called "tort reform" will continue to fail as a solution to this country's health care problems.
(Thanks much to Lesley Ann Skillen for her assistance.)
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The health care in Texas has declined to nothing more then throw pills at symptoms. It is rare to get any test ran despite the need. History and physicals are no longer taken. All because we have a state full of doctors who have no accountability. And as for nursing homes sending patients to hospitals for the least little thing, that is so wrong. In fact, after leaving critical care, I worked in a nursing home and was fired because I sent 'to many patients to the hospital'. 6 months later the state came in took Conservatorship, 12 residents ended up in hospital 4 of them died. The nursing home was closed 3 months later. As nurses we try to be the patient advocates that our oath commands of us, but when doctors no longer feel any reprisal for neglectfulness and malpractice, we can no longer be the patients advocates.
I pray no other state passing a bill/amendment that will prove to be as deadly as our state has become in the past 7 1/2 yrs. That will take away the peoples right for redress against those who hold their lives in their hands. And yes the total amount is only 250,000 a patient, total of 700,000 if a class action. Govt has no right to limit our pursuance to justice.
My son in law was referred to a surgical oncologist for swollen lymph nodes. 6 months, 12 visits never a biopsy, not even measurements taken. We have all the med records including the Dr notes. Most less then two sentences. Just kept saying and documenting he believed it was due to infection. A yr after the nodes had swollen my son in law ended up in our VA ER due to swelling of lower leg which was military related injury. They looked at the lymph nodes, immed scheduled biopsy. He had lymphoma. and it had spread not only through all lymph nodes but some organs as well. A year of very harsh chemo and cancer free but disabled due to damage to heart and lungs. Again, we were told by attys that the cap was too low to to pursue a malpractice cause against the first doctor. That the hospital he worked for, as well as medical school he taught at would have the ability to drag a case out for so long that it would actually cost us money to pursue. My grandchildren my have their father only for another 5 yrs at most.
I quit nursing in 2005. Being an ER nurse in a major trauma center, the changes of the Tx amendment which only passed by 1% of votes, I watched as our good doctors were fired, new ones brought in. We then were sending home patients without proper testing to have them come back being coded and die. A newborn with ischemic bowel no scan done, a toddler whose strep had lead to endocarditis no chest xray, and a 35 yr old male who died for no reason other then dr. stepped outside out protocols and order ct with xrays first. His only injury from mc wreck turned out to be broken clavicle. As a doctor you should know that part of a trauma ct requires placing arms above head. The bone severed the artery and he bleed out before we could even get back down the hall to the trauma room. Not one of these families could find an attorney who could take their cases despite the obvious neglect involved. Many of us left the health profession, including doctors who moved out of state. No we have a shortage.
You speak as though you know the thought process of those involved. You don't. You say lawsuits are not physicians problems? How do you know what docs go to bed worrying about every night.....often whether they forgot to do something they should have.
Your issues of a for-profit medical system has merit, but is not the subject of this discussion.
The EMS arrive, and since the history is unknown and the demented patient cannot tell them anything, they follow the defensive "policies" of their EMS group and put the lady in a C collar and strap her to a backboard and haul her to the ER. Now the ER Dr is presented with a lady who can't tell them anything, and is strapped down. Do they rip off the straps and sit her up or do they order Xrays and CT's of everything?
When nothing is found, the patient is now returned by EMS to the nursing home- until she does it again next week.
You've now run up a $5,000 bill easily, all in the name of everyone " covering their @ss!"
Think it never happens ? It happens THOUSANDS of time each month across the country- and this is just the tip of the iceberg of defensive medicine. And not just by doctors.
One of the first lessons you learn in Medical school is "It's hard to get in trouble from ordering too many tests- you only get in trouble when you don't order enough tests to satisfy some lawyer one day"
But, hey- what do I know ? I'm just a doctor in an ER !
Now, with the first hints of positive change in the system, you argue that because everyone hasn't jumped right into the water and stopped practicing "defensive medicine", tort reform must not work. Excuse us for worrying that there may be a bunch of sharks waiting underneath the surf. A fear that took decades to build will take many years to wipe away. Your arguments are like complaining that there is no oak tree present the summer after you plant an acorn.
And finally, let's look at your Medicare argument. I, for one, am not a terribly intelligent doctor. So please provide for me and your other readers with your definition of a "useless" test or a test that is not "medically indicated" so that I can avoid fraudulently billing Medicare. In fact, if you could give me a couple of specific examples of useless tests, I'd sure appreciate it . After all, you're the founder of a pretty powerful think tank. Maybe you and some of your staff could show all of us greedy, excuse-making, fraudulent bill-submitting doctors know how to practice perfect and cost-effective medicine. It would do our country a world of good.
Proper tort reform will decrease defensive medicine if given sufficient time to change the mindsets of physicians who have trained and practiced their entire careers in a culture that has taught them to fear lawsuits.
Whether you call it "overutilization" or "defensive medicine," attorneys have successfully made doctors afraid of lawsuits. See recent survey by Jackson Healthcare of more than 3000 physicians: "Every word that I write on every form is crafted with the idea that a malpractice attorney will challenge me to defend my practice."
http://www.epmonthly.com/whitecoat/2010/11/new-defensive-medicine-survey/
Oops. Sorry. That was an "anonymous" survey. Don't anyone believe the findings. In fact, everyone should probably believe just the opposite.
Now you want to decrease the number of tests doctors perform, so that more bad outcomes can occur and then attorneys can file more malpractice suits. Cha-ching for the plaintiffs' bar.
I find it amusing on your last referenced link how, in the past 18 years, The "Americans for Insurance Reform" that practices out of the same address as your "Center for Justice and Democracy" is able to generate only six bullet points (and no controlled studies) to purportedly show how America can "sue its way to better health care."
I did notice how you didn't address any of the substantive arguments in my comment, though. I don't expect that you will, either, because doing so would deviate from talking points and might just show how little substance is behind your assertions.
Perfect care or available care? Which should we choose?
I'll explore these issues more on my blog.
http://www.epmonthly.com/whitecoat
Your example of tort reform in Texas doesn't quite fit, even though it might appear apropos. You see, the Texas laws don't limit one's ability to be sued for missing a diagnosis or delaying testing - it only limits one's liability (or the malpractice insurance company's liability) to $250,000 when one is sued. Is your argument that doctors should stop practicing defensive medicine because being dragged through a four year long lawsuit and being reported to the National Practitioner Data Bank, and being refused hospital privileges or malpractice insurance are meaningless events because doctors can only be liable for $250,000 per bad outcome?
Lawyers have spent decades building a mistrust of the legal system. A cursory search of the AAJ site shows a quote stating that the threat of medical malpractice lawsuits "puts pressure on medical professionals to avoid common medical errors." http://www.justice.org/cps/rde/xchg/justice/hs.xsl/10541.htm. So you lawyers want us to be afraid of lawsuits but you also say that our attempts to avoid the lawsuits are only so that we can make more money? How inane is that argument?
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"Anonymous" doctor surveys aren't to be trusted. Is that the premise? So should we also throw out all other anonymous surveys as being invalid? Are presidential polls invalid because they are "anonymous"? Product surveys are anonymous, too. Angie's List must be a complete farce. Do you have one iota of substantive evidence that anonymous surveys are not just as valid as surveys in which those surveyed can be identified? Unless you do, you are purposely attempting to mislead the people who read your drivel.
Then there's the specious argument that tort reform should immediately corral defensive medicine costs. Why don't you explain to your readers how a family practitioner or an emergency physician increases his or her income by ordering more tests or referring patients to specialists. Oh, its the "I'll refer patients to my own lab" argument. It's obvious that you haven't done your research for this article since you either have never heard of or are purposely neglecting to mention the federal Stark laws that prohibit self-referral. Those have only been around for - what - 20 years? We're already up to the third iteration of those laws.
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