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September 02, 2003 MALPRACTICE AGAIN....Ah, another study of the malpractice crisis gripping America's First, are doctors leaving their practices or moving out of state because of skyrocketing premiums? Why yes, there were a few! But not many, and it doesn't appear to have actually had any broad effect on service:
(Italics mine.) In a table later in the report, they show about 300 claims of physicians moving or retiring due to rising malpractice premiums. It turns out that a considerable number of these claims turned out to be wrong, and in any case that number is for three states with a combined total of about 43,000 doctors. Even if the number were verified, 300 out of 43,000 is not exactly crisis material. The rest of the report is more of the same. Do doctors practice defensive medicine due to fear of lawsuits? Maybe, but the survey data is unreliable and followup studies indicate that tort reform has — at best — only a small impact on the practice of defensive medicine. Are premiums higher in states without tort reform? Again, maybe, but the data is pretty uncertain and other factors may be equally important. In fact, the most remarkable thing about this report was just how little reliable data the GAO was able to find. Malpractice reform has been a hot topic for several decades now, and yet time after time when I read reports on the subject I discover that complete data is nearly impossible to get and there are only a handful of studies available — studies that turn out on inspection to be rather limited in scope and doubtful in methodology. Given the supposedly critical nature of the problem and the broad solutions being proposed, it's inexplicable that Congress hasn't (a) started requiring recordkeeping that would provide researchers with reliable raw data and (b) ponied up some serious cash for a detailed study of malpractice and tort reform. "Serious" in this case probably means only a few million dollars, a pittance compared to the alleged seriousness of the problem. How is it possible that such a large problem has been on the radar screen for 30 years without once being the subject of a well-funded and genuinely large scale study? It almost makes one think that perhaps the major players in this drama don't really want one. Now why would that be? Posted by Kevin Drum at September 2, 2003 11:43 AM | TrackBackComments
What's really funny is that a lot of the same people who go all Chicken Little over the need for tort reform and the "malpractice crisis" are the same people that advocate gathering more evidence to see if there really is such a thing as global warming, and whether any human factor has any influence if it is. The standards of evidence seem strongly linked to the side of the issue their big campaign donors line up on. Posted by: cmdicely at September 2, 2003 11:51 AM | PERMALINK"It almost makes one think that perhaps the major players in this drama don't really want one. Maybe because if any serious research were done they would find that doctors, insurance companies, lawyers and politicians are making a lot of money at the expense of the American people. Posted by: chris at September 2, 2003 12:06 PM | PERMALINKClearly, truth of the matter is of NO concern to those spouting the malpractice/tort reform issue. The trick is how to explain that to people in 2 short sentences, and then back it up with, not facts, but some logic. Maybe that's the problem with Democrats, we're always too concerned with supporting our case with facts, instead of just leaving the assumption that they're out there suffice. Wingers don't need no facts, d'oh, but spin 'em a good tail, sorry, tale, and they might just follow you anywhere! Posted by: Duckman GR at September 2, 2003 12:06 PM | PERMALINKOh. I forgot pharmaceutical companies. Throw them into the mix as well. Posted by: chris at September 2, 2003 12:07 PM | PERMALINKI see that Virginia is again in a medical malpractice crises. I quess its previous attempts at tort reform did not work. Unfortunantly, Virginia has enacted all of the tort reform measures it can enact; therefore, they propose closing the doors of the courthouse to the victims of malpractice completely. Of course, that is what they wanted all along. Posted by: Mike at September 2, 2003 12:07 PM | PERMALINKThe only insurance crisis in the health care industry is that so many individuals and businesses cannot afford to purchase health insurance. One wonders why medical societies don't focus on this particular insurance crisis. (These crises are linked: one of the factors that motivates many people to bring malpractice lawsuits is the need for additional follow-up medical care at a time when they are too ill or disabled to return to work.) In other words, malpractice serves as a safety net of sorts for people who can take advantage of it. This seems to be particularly evident in the area of obstetrics. I think back to a religious image a friend of mine once gave me: Imagine in after life that everyone's arms are bent so that they cannot feed themselves. In heaven, they feed each other. In hell they die desperately trying to fend for themselves. Right now, the system of health care delivery and financing is somewhere in Dante's sixth or seventh circle. Posted by: Barbara at September 2, 2003 12:08 PM | PERMALINKKevin, more objectively pro-driving-doctors-out-of-business-through-lawsuits Clearly, Medicare needs a 'Malpractice lawsuit payment' benefit for Doctors. That way everyone benefits. Well, except the taxpayers. Posted by: Tripp at September 2, 2003 12:23 PM | PERMALINKOne thing that depresses me is the possibility -- noted by Kevin -- that once defensive medicine and similar practices in other businesses become entrenched, no amount of tort reform can dislodge them. In part this is perception trumping reality, and in part this is because the number of lawsuits filed is more driven by the number of plaintiffs' lawyers than by the number of legally meritorious cases. Posted by: Crank at September 2, 2003 01:01 PM | PERMALINKBut Crank, what *is* defensive medicine? Who decides? And is so-called defensive medicine really much of a driving force in the cost of health care? The most rapidly rising category of costs is pharmaceuticals, and their use is driven by a combination of factors, none of which seem all that germane to the malpractice debate. An astounding percentage of health care services/costs are incurred in the last months of an individual's life. Here too, this doesn't seem to be related to malpractice, at least not when a person is elderly and suffering multiple setbacks. And so on. A start would be to evaluate those areas where malpractice is most prevalent (that would be obstetrics, anesthesiology, and orthopedic surgery) and try to draw a line between lawsuits per capita and escalating costs. Even that would be crude, but it's better than nothing. You see, I don't think defensive medicine is a cost driver, not in the same way that new drugs, new technologies, etc. are. So I discount the issue of defensive medicine pretty readily, perhaps too much so. And in some cases "defensive medicine" is just a way of saying that the standard of care increased. Posted by: Barbara at September 2, 2003 01:42 PM | PERMALINKWell, as far as defensive medicine is concerned, there are a lot of
procedures that doctors won't do soley because of legal liability. For
instance, if you're a pregnant woman and have brain cancer, forget about
radiation therapy. It can be done without harming the fetus, but no
radiologist will do it. Bravo to Kevin for doing such a knock-down job on the malpractice farce. He has done many posts over the months and has devoted a lot of time and effort to the issue. When he first took it up, it seemed he might possibly favor 'tort reform', or deem it a minor issue. I was mortified. Thanks for educating all of us. This is a very important issue. Like gutting the clean air act, only bigger. Why else would Bush spend so much of his personal focus/capital/credibility on it. They want to do away with accountability at every level. It isn't just medical malpractice by a long shot. That's just the easy one, like invading iraq. It's a systematic campaign to dismantle the ability of people to hold corporations and their officers accountable through the courts. It's the next chapter in their de-regulation/total corporate freedom playbook. Posted by: Obe at September 2, 2003 02:39 PM | PERMALINKCrank, as you and Kevin both noted, it's no more than a possibility -- the hard evidence just isn't there. Since it is no more than a possibility, the rest of your post just doesn't follow. Not only do you not know whether the possibility is a reality, you have no data to back up your further suppositions. Talk about building a house of cards.... Posted by: PaulB at September 2, 2003 02:48 PM | PERMALINK"...doctors I know feel they order far too many tests out of a desire to cover their asses rather than out of any medical necessity." I've always been curious about this. I suspect that a lot of doctors order the tests because they get paid to perform them. Alternatively, those tests have got to be a good way to steer business to friends. If I were, say, a pediatrician, I'd be sorely tempted to send fruit baskets to all of the ob-gyns in town come Chirstmas time. If I were a pulminologist, I'd play golf out with the cardiologists whenever possible, etc. This kind of thing goes on in most industries; I'm sure that medicine is no different. Posted by: Joe Schmoe at September 2, 2003 03:33 PM | PERMALINK300 of 43,000 isn't a crisis!!! If even three of those are neurosurgeons, we're talking about an entire region that's utterly without trauma care. If 50 are OBGYN's, some of the most hard hit by malpractice hikes, good luck delivering your own baby. And this analysis doesn't countenance the number of docs who are officially freeballing, i.e. are practicing without insurance. Tort reform is an awfully trumped up issue, but denying that malpractice costs are in crisis at a time when doctors' incomes have dropped precipitously and when HMO's have been reducing the quality of care does everyone a disservice. Doctors are being shat upon in this country from every direction, and this malpractice issue would just be the straw that broke the camel's back. Health care is in a state of emergency, and turning our backs would be extremely unwise. Posted by: Marc at September 2, 2003 03:35 PM | PERMALINKThe defensive medicine issue is interesting. The total payouts for malpractice claims (settlements and judgments) is about $5 billion per year. Some estimates of the cost of defensive medicine are as high as $100 billion per year. Has anyone considered the ethics of spending $100 billion of other people's money and putting patients through useless procedures soley for the financial benefit of the doctors? You have to admire the sophistication of a public relations effort that permits an industry to receive $100 billion dollars per year for useless services and then blames some other profession for making them do it. Perhaps the doctors should be required to identify each defensive medicine procedure they order and not take any compensation for it since the purpose of the procedure is to help the doctor and not the patient. Posted by: dwight meredith at September 2, 2003 04:21 PM | PERMALINKI've always been curious about this. I suspect that a lot of doctors order the tests because they get paid to perform them. Well, duh. But they aren't going to say that, any more than lawyers are going to admit to dishonestly padding billable hours. The difference is, we are culturally programmed to assume the best out of doctors, because they are noble people who choose their highly paid profession out of altruism, while we are conditioned to assume the worst of lawyers, because they are a bunch of ambulance chasing sharks that seek nothing but to take advantage of their clients, the legal system, and the innocent victims that are the formal targets of their actions. Posted by: cmdicely at September 2, 2003 04:38 PM | PERMALINKDefensive medicine is not what I encounter. Instead, it is profit medicine, where tests and therapy are denied if at all possible. That's the policy the health care provider pushes. Do less, not more. Do as little as freaking possible. That pressure has to greater than the fear of lawsuits, I bet. Still, one has to wonder. Even if the malpractice abuse claims were true, what poses a greater danger to the nation and the economy, malpractice suits or 50,000,000 people without medical insurance? What does GWB have to say about the latter? Posted by: One at September 2, 2003 04:38 PM | PERMALINKI've heard only anecdotal claims, but my understanding is that the "doctors going out of business" situation is mainly limited to certain high risk specialties, notably obstetrics, gynecology, and anestesiology. Posted by: James Joyner at September 2, 2003 05:19 PM | PERMALINKAnother great post. Well done, Kevin. Posted by: John Isbell at September 2, 2003 05:38 PM | PERMALINKI can offer a real example of a problem. In the NYC area, three free-standing birth centers have closed due to malpractice insurance increases. I believe the premiums were on the order of $30,000/year and went up to $300,000/year. They were the Childbirth Center in Englewoon, NJ (closed last year), The Elizabeth Seton Childbirth Center in Manhattan (closed yesterday), and The Brooklyn Birth Center in Brooklyn (closing "soon"--they just got their bill last month). The Morris Heights Childbearing Center is federally funded and insured, so we expect them to remain open. The option of out-of-hospital birth has been virtually eliminated for women in the area--it would be impossible for the home birth midwives and the single remaining birth centerin the area to take that many clients. Posted by: Shamhat at September 2, 2003 06:34 PM | PERMALINKMore tests to make money? Please. Check whether said doctors have financial interests in outside labs. Posted by: Atrios at September 2, 2003 07:24 PM | PERMALINKShamhat, the premiums may be going up, but is there any proof that the premium increase is attributable to increased lawsuits? And if there is, is there any proof that the lawsuits are without merit? Just asking -- Posted by: nolo at September 2, 2003 08:09 PM | PERMALINKGood post on an important topic. Two points here: First, let's not forget that one of the GOP's major goals for years has been to starve trial lawyers, who are believed to be big Democratic contributors. "Tort reform" is the currently preferred means, malpractice insurance is the excuse of the moment (see Marshall's article in the Wash Monthly). It's part of the larger campaign to shut off the Dems' money (labor union contributions in money and kind, etc.) while wallowing in ever more of their own. They learned this from Thatcher in Britain. As indeed they learned the coordinated political use of concentrated media from the Tories. Second, in good investment times premiums often have absolutely nothing to do with claim experience. Especially when a company wants to increase its penetration in a particular market. When investments lose a little-- like, say, 40% between March 2000 and this spring-- the loss reserves have to be made up through comparatively outrageous premiums. I think that's most of the hike right there. It could also be targeted manipulation as we saw with Enron. Anything's possible with this crowd. Posted by: Altoid at September 2, 2003 08:30 PM | PERMALINKPerhaps this is a stupid question (I am woefully uninformed on this issue), but have there been any studies of the kinds of actions that cause doctors to get sued for malpractice? I mean, is there any proof that these lawsuits are "frivolous", as so many seem to think? If, as I suspect (with no proof, mind you), the main reason lawsuits are going up is because more people are becoming aware of their legal rights, then I do not see the increase as a "crisis" at all. I also do not feel that sorry for doctors who claim that the state is "ruining" them through litigation. It's the state, after all, which enforces their quite lucrative monopoly on medical care. With this special privilege comes special responsibility. Posted by: kokblok at September 2, 2003 08:44 PM | PERMALINKIt would be folly to bring frivolous medical malpractice lawsuits in an attempt to strike it rich; most likely, it would bankrupt the attorneys. Most malpractice cases that actually get tried lose because even if you prove negligence, you still have to prove that it caused injury, something very difficult to do when you have competing expert witnesses (doctors) telling opposite stories to a confused jury. The jury is likely to side with the doc if there is any doubt, and typically does. Doctors who testify as experts charge from $300 to $800 an hour, and even more for trial testimony ($5,000 for 1/2 day in court is not unusual). You cannot survive a motion for summary judgment without an expert M.D. saying under oath that in his or her opinion, there was negligence and it caused an injury. Most ethical doctors will have nothing to do with a baseless case. Defense attorneys are not pussy cats who come running with buckets of money seeking settlement at the instant a lawsuit is filed. They fight very hard and aggressively and will not pay nuisance settlements in all but a very small number of cases, especially if they think the case is BS. The plaintiff's attorney has to build the case and show a good likelihood of prevailing on the merits before any meaningful settlement is likely to be even a possibility. It simply costs too much, the work is too hard and the likelihood of a payoff too remote (and a loss too likely) for any one to rationally attempt to make money pursuing frivolous malpractice cases. It is hard enough to win with a meritoriuos case, and it costs a fortune to take that risk. Posted by: Fred at September 2, 2003 09:55 PM | PERMALINK>Shamhat, the premiums may be going up, but is there any None of these premium increases are the result of any recent lawsuits. They were a complete surprise to the midwives at each of the 3 birth centers. I don't think that any of the proposals currently on the table would affect this situation at all, since the risk a birth attendant faces is the possibility of catching a baby who has disabilities. The huge awards are for families whose children will need assistance for the rest of their lives. If a child has cerebral palsy, Mom might not ever be able to go back to work and Dad can't ever change jobs unless the insurance changeover is seamless. (God forbid the kid is on Mom's insurance and there is no Dad in the picture, or dad gets downsized.) And current research indicates that cerebral palsy is not, as was postulated in the 70's, the result of mistakes made by the birth attendant. I think the eventual solution will be a "no-fault" social insurance system in which a family who needs help to take care of a child will get it without having to claim (correctly or incorrectly) that the child's disability was caused by the birth care provider. Theoretically parents of children with Downs syndrome, autism, and other expensive disabilities not attributable to malpractice at birth would also be assisted. Posted by: Shamhat at September 3, 2003 03:43 AM | PERMALINK"What's the solution? I'm serious. Any ideas" I honestly don't know the legal ramifications or social ones, but the simple answer is to put the power of decision making back into the hands of the doctors, who only went to school for many years to learn thier profession, and out of the coffers of the insurance companies. Posted by: Cassidy at September 3, 2003 06:20 AM | PERMALINKThe malpractice insurance premium crisis was quite big here in NJ last year; many doctors were seeing big jumps in premiums, especially in high-risk specialties, and doctors and insurance companies were pushing for tort-reform measures of one sort or another. But there was one number that I never saw, anywhere, amidst all of the data about how much premiums were rising: I never saw any information put out by the insurers about how much money they were paying out in claims. The insurance companies also never made any promises about what they would do with their premiums if tort reform measures were enacted. Obviously, if laws designed to lower the costs of insurance claims are to have any affect on premiums, then it must be increases in claims that are causing the increases in the premiums. Since the insurers would provide no information showing that to be the case, I have to believe that the premium increases had nothing to do with claims costs, and thus tort reform measures would reduce the rights of patients without doing anything to address the problem of rising premiums. The thing to remember about the insurance industry is simple: unlike what you might think, the insurance industry does not make its money by taking in more money in premiums than it does in claims. Indeed, generally speaking, insurers generally take in less money in premiums than they pay out in claims; they refer to this loss as their cost of funds. Instead, insurers make their profits because they get paid the premiums before they have to pay out claims, and can invest the money in the meantime. (For a nice explanation, pick up any annual report for Berkshire Hathaway, and read Warren Buffet's Chairman's Letter.) Now it's not at all clear that there has been some big jump in malpractice insurance claims in the past few years -- indeed, the reluctance of malpractice insurers who are pushing tort reform to release any numbers suggest that there has been no such jump. But it is clear that investment returns have dropped drastically in the past few years, with the bust in the stock market and drops in interest rates. So insurers that want to be profitable will do whatever they can to reduce their "cost of funds" -- reduce claim costs, increase premiums, or both -- to fit with the reduced return available from investing. That's why they are lobbying like heck for tort reform, and simultaneously raising their premiums. But unless they can give hard data that malpractice lawsuits and claims are "out of control", as the tort reformers like to say, well, I will simply have to believe that they are lying. Posted by: Alex R at September 3, 2003 08:58 AM | PERMALINKOK, so they're lying. "OBs are becoming scarce. We need a solution. Again, any ideas?" Well, I know that when nurses and students were scarce, many states implemented tuition assistance programs to steer students towards those occupations. Perhaps similar incentives could be extended to attract OB practitioners. Since we don't really know *why* OBs are becoming scarce, perhaps a solution like this, which has a nuetral effect on patients' legal rights, is in order. I haven't thought this through much, but its just a suggestion. Alternatively, perhaps the field of birth-caretaking is simply being disaggregated, with healthy births and high-risk births being handled by different practitioners (midwives for the former, OB doctors for the latter). I understand that midwives, for instance, do not have to have the same kind of insurance as OB doctors. If the institution of midwifery continues to expand, perhaps the relative lack of OB doctors is not really a crisis at all. 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