Medical Malpractice Reform: Truth in Advertising Needed (Part Two of Three)
by Michael Halasy
Medical Malpractice Reform: Truth in Advertising Needed (Part Two of Three)
So in the first article, we discussed the historical implications of tort reform by examining Texas. The take home message being that tort reform failed to curb health care spending, and/or control costs (outside of malpractice premiums which did fall). Proponents of tort reform claim that by enacting aggressive tort reform measures, so called defensive medicine practices could be reigned in. Estimates about the costs of defensive medicine vary, and I have seen estimates in the literature as low as 4%, and as high as 14% of total health care spending. As with most things, the truth is probably somewhere in the middle, with a realistic estimate of 8-9% likely being the real integer. Recently, several studies have attempted to assess two of the most important questions about this topic:
A: Does a reduction in defensive medicine practices occur with the implementation of tort reform measures?
And
B: If it does cause a reduction in defensive medicine practices, will this affect patient outcomes or mortality?
Three more recent studies are likely the most pertinent, and we will briefly review those. To start with, Currie and MacLeod (go ahead, I had the Highlander flashback too) (2006) reviewed national data on childbirths to examine whether or not a cap on non economic damages would change the types of procedures performed at childbirth. They found that nationally, in those states with tort reform, the rate of C-Sections increased, and the rate of preventable complications secondary to childbirth increased by 6%. They also found, that a change in the “deep pockets rule”, actually decreased them. The paper is HERE (gated article).
Then Sloan and Shadle in 2009 examined this same issue, using Medicare payments as an index. Their premise was, that if tort reform truly changed physician practices with regards to additional testing and/or defensive medicine, they would find a reduction in Medicare payment rates per beneficiary. They found that tort reform did not alter defensive medicine practices, with one exception. They did find that so called “indirect” reforms (mandatory periodic payments, Joint and Severability reform, and patient compensation funds) may reduce spending when applied to “any hospitalization”, but inexplicably, these indirect reforms did not affect any of the four diagnoses included in the study. Their paper is HERE.
There have been others, and the final one we will discuss is the NBER report done in 2009 by Darius Lakdawalla and Seth Seabury, Working Paper No. 15383. Found HERE (gated article). Essentially, Lakdawalla and Seabury found that while targeted reforms may be effective, there could be an associated, and this is key… a 0.2% associated increase in mortality for every 10% reduction in medical malpractice liability costs. Why? Because defensive medicine practices DO FIND things. Any physician who has been in practice for any length of time, and who is being honest with you, will admit that they have done a test presuming it would be negative, and “perhaps the patient doesn’t need it”, only to be surprised by the results. We can argue whether or not 0.2% is a significant number, but even we look at the sickest 5% of Americans who are responsible for 47% of healthcare spending, than this group could have an increase of 30,000 deaths annually with a reduction of 10% spending on medical malpractice. I am not going to pass moral judgment on this fact. I will leave that up to the reader. The reason I bring this up, is that this is an important, and poignant discussion, but we need to be honest about the data that is out there now. Let’s have a discussion, but let it be an honest, and fact based one.
I tend to think that the Sloan and Shadle findings are important in the fact that I don’t think that physician practices are going to “magically” change overnight. The Texas evidence from the last article, would suggest that testing expenditures may actually increase. Yet, in the face of overwhelming evidence, proponents continue to cling to a disproven ideology regarding direct malpractice cost containment, IE; Non economic caps.
[edited for ease of link usage only – klh 24 feb 2011]
This question may have already been asked so excuse me if I’m being redundant. Do these studies address this difference between “defensive” medicine and “preventative” medicine? If there is a systemic reduction in the former is the latter also effected? Along a similar line, should medical practice be made less defensive in the treatment of some acute or persistent/long term dysfunction? And what is it that is being defended against, he Dr’s liability or the patients prognosis?
I am a doctor and in my experience the cost of defensive medicine is significant – more likely 14% range. I am a radiologist and everyday I see doctors ordering very low yield tests to cover their backs. Also malpractice reform will not significantly change that number. The reason is that it’s nice to decrease the pain and suffering cost of malpractice lawsuits but the economic damages does not change with these reforms. Also even if costs are lower, I still don’t want to be sued. Having said that, malpractice reform is good because it lowers malpractice premium (I.e. Lawyer fees) without changing quality of medical care. So the savings may not be as much as policy makers hoped but the result is still good – cutting lawyer fees which contribute nothing to society. I want to note that I am for the existence of malpractice lawsuits that have merit – patients getting rewarded if dr was negligent and doctors practicing carefully because of fear of lawsuits.
thank you, thank you, thank you for this:
and this is key… a 0.2% associated increase in mortality for every 10% reduction in medical malpractice liability costs. Why? Because defensive medicine practices DO FIND things. Any physician who has been in practice for any length of time, and who is being honest with you, will admit that they have done a test presuming it would be negative, and “perhaps the patient doesn’t need it”, only to be surprised by the results. We can argue whether or not 0.2% is a significant number, but even we look at the sickest 5% of Americans who are responsible for 47% of healthcare spending, than this group could have an increase of 30,000 deaths annually with a reduction of 10% spending on medical malpractice.
this part of it does not seem to ever make it into the ‘serious’ discussions for some reason. it’s almost as if that were a feature, not a bug…