Health Reform's Taboo Topic
By Philip K. Howard
Friday, July 31, 2009
Health-care reform is bogged down because none of the bills before Congress deals with the staggering waste of the current system, estimated to be $700 billion to $1 trillion annually. The waste flows from a culture of health care in which every incentive is to do more -- that's how doctors make money and that's how they protect themselves from lawsuits.
Yet the congressional leadership has slammed the door on solutions to the one driver of waste that is relatively easy to fix: the erratic, expensive and time-consuming jury-by-jury malpractice system. Pilot projects could test whether this system should be replaced with expert health courts, but leaders who say they want to cut costs will not even consider them.
What are they scared of? The answer is inescapable -- such expert courts might succeed and undercut the special interest of an influential lobby, the trial lawyers. An expeditious and reliable new system would compensate patients more quickly and at a fraction of the overhead of the current medical justice system, which spends nearly 60 cents of every dollar on lawyers' fees and administrative costs.
Even more compelling, expert health courts would eliminate the need for "defensive medicine," thereby helping to save enough money for America to afford universal health coverage.
Defensive medicine -- the practice of ordering tests and procedures that aren't needed to protect a doctor from the remote possibility of a lawsuit -- is ubiquitous. A 2005 survey in the Journal of the American Medical Association related that 93 percent of high-risk specialists in Pennsylvania admitted to the practice, and 83 percent of Massachusetts physicians did the same in a 2008 survey. The same Massachusetts survey showed that 25 percent of all imaging tests were ordered for defensive purposes, and 28 percent and 38 percent, respectively, of those surveyed admitted reducing the number of high-risk patients they saw and limiting the number of high-risk procedures or services they performed.
Defensive medicine is notoriously hard to quantify, but some estimates place the annual cost at $100 billion to $200 billion or more. Quantification is difficult because defensiveness is now embedded in the culture of American health care; it's hard to separate the financial incentives from the distrust of justice. Yet every physician, and most patients, can give examples. In a recent letter to the Wall Street Journal, a Texas doctor described how, since being unsuccessfully sued in 1995, he has "doubled and tripled the number of tests and consultations that I order."
A few years ago, I was not allowed to have minor knee surgery at an orthopedic hospital unless I went through a comprehensive "pre-operative examination." There was no financial incentive to the hospital because this pre-operative exam was to be done elsewhere. As it turned out, I had recently endured all those tests in my annual physical. But the orthopedic hospital would not accept month-old test results, nor even an explicit waiver by me of any liability. The result was pure waste: more than $1,000 spent on wholly unnecessary tests.
Health-care professionals live the reality of defensive medicine every day. Do an online search of the phrase "defensive medicine," and you will find scores of testimonials. But congressional leadership, amid all the talk of cost-containment, has assiduously avoided even mentioning the phrase.
Containing costs, as Rep. Jim Cooper (D-Tenn.) noted on "Face the Nation" recently, requires overhauling the culture of health-care delivery. Incentives need to be realigned. That requires a legal framework that, instead of encouraging waste, encourages doctors to focus on what's really needed. One pillar in a new legal framework is a system of justice that is trusted to reliably distinguish between good care and bad care. Reliable justice would protect doctors against unreasonable claims and would expeditiously compensate injured patients. The key is reliability. Traditional "tort reform" -- merely limiting noneconomic damages -- is not sufficient to end defensive medicine, because doctors could still be liable when they did nothing wrong.
The shifts in legal structure required to contain costs are hard to "score," using the terminology of the Congressional Budget Office. Only with experience can anyone quantify the real value of realigning incentives. But surveys and studies repeatedly confirm what every doctor knows -- that they go through the day ordering tests and procedures that aren't really needed.
As the nation debates health-care overhaul, not addressing defensive medicine would be a scandal, a willful refusal by Congress to deal with one of the causes of skyrocketing health-care costs. The real crisis here is not that health care is broken; people of good will could come together and create the conditions for rebuilding the incentive structure of health-care delivery. The real crisis is that Congress is broken, and that it answers to special interests instead of the needs of all Americans.
The writer is chairman of Common Good, a nonprofit legal reform coalition, and a partner with the law firm Covington & Burling LLP.
...The administration's defense is to accuse critics of being for the status quo. Nonsense. Candidate John McCain and a host of other Republicans since have offered alternatives. Let me offer mine: Strip away current inefficiencies before remaking one-sixth of the U.S. economy. The plan is so simple it doesn't even have the requisite three parts. Just two: radical tort reform and radically severing the link between health insurance and employment.
(1) Tort reform: As I wrote recently, our crazy system of casino malpractice suits results in massive and random settlements that raise everyone's insurance premiums and creates an epidemic of defensive medicine that does no medical good, yet costs a fortune.
An authoritative Massachusetts Medical Society study found that five out of six doctors admitted they order tests, procedures and referrals -- amounting to about 25 percent of the total -- solely as protection from lawsuits. Defensive medicine, estimates the libertarian/conservative Pacific Research Institute, wastes more than $200 billion a year. Just half that sum could provide a $5,000 health insurance grant -- $20,000 for a family of four -- to the uninsured poor (U.S. citizens ineligible for other government health assistance).
What to do? Abolish the entire medical-malpractice system. Create a new social pool from which people injured in medical errors or accidents can draw. The adjudication would be done by medical experts, not lay juries giving away lottery prizes at the behest of the liquid-tongued John Edwardses who pocket a third of the proceeds.
The pool would be funded by a relatively small tax on all health-insurance premiums. Socialize the risk; cut out the trial lawyers. Would that immunize doctors from carelessness or negligence? No. The penalty would be losing your medical license. There is no more serious deterrent than forfeiting a decade of intensive medical training and the livelihood that comes with it....
Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (N.H. 1929), is a leading case on damages in contracts handed down by the New Hampshire Supreme Court.
This case is also famous for its mention in the John Jay Osborn, Jr. book, The Paper Chase, and in the film version of that work, as well as its use in legal education.
Hawkins' hand was scarred from contact with an electrical wire. He was approached by McGee, a doctor, about having the scars removed. McGee guaranteed to make the injured hand a "one hundred percent good hand". McGee used a technique of "skin grafting" that he was unfamiliar with and failed to remove the scars. Because McGee used skin from Hawkins's chest area, the graft caused the palm of Hawkins' hand to grow thick hair.
Hawkins sued under a theory of breach of contract and was paid for damages from the pain from the operation and the damage the operation had caused to his hand. The issue before the court was what type of damages should be awarded.
The court held that the amount of damages awarded should be equal to the difference between the value of what Hawkins was promised to receive--a "one hundred percent good hand"-- and what he in fact received--a hairy palm-- as well as any incidental losses he incurred as a result of the breach. This is known as expectation interest, (or Expectation damages) which attempts to put the plaintiff into a position where they would have been had the contract not breached. The court made a point of dismissing the argument towards damages for the pain and suffering because pain and suffering were an implicit part of the contract for surgery. In sum, the plaintiff received damages in the amount of the difference between what he expected under contract--a perfect hand--and what he received--a hairy hand. Pain and suffering were found to be part of the contract, part of the operation, and therefore not part of damages or breach.
So what do want? Do you want to allow a doctor to cut off the wrong leg and you being unable to be able to sue the doctor for malpractice?
The Snake Pit is a 1948 film which tells the story of a woman who finds herself in an insane asylum and cannot remember how she got there. It stars Olivia de Havilland, Mark Stevens, Leo Genn, Celeste Holm, Beulah Bondi and Lee Patrick.
Virginia, a recently married writer, is hospitalized for a nervous breakdown. Unable to perceive what is going on, for a long time she is not even sure where she is. The film follows her progress through the various wards and her psychotherapy sessions with an understanding doctor. In flashbacks she returns to her childhood and explores incidents which might have caused her breakdown. Over time she gains insight and self-understanding, and is able to leave the hospital.
What would YOU call some sort of a hole, which donkeys tended to fall into???