Medical Malpractice is a Symptom: And We All Know That You Can't Cure a Disease By Treating It's Symptoms

"Malpractice Reform!"
"Malpractice Reform!"

If you listened to the AMA (something that I do my best not to do), you'd think that this was the holy grail of physician protection. As though all we had to do implement this reform (along with shoring up those Medicare payments that they've supposedly been fixing for the last decade or so) and this country would become a medical utopia. We could practice without fear, pay for our malpractice protection at a reasonable price, and provide medical care to the patient at a reasonable price.

Here's the facts. In states that have enacted this reform, there has been anywhere from a flatlining in insurance prices to real, but small, drops in price. While these reforms, which are primarily aimed at non-economic damage caps, have some impact, they certainly do not change anything significantly. They don't stop defensive medicine or let physicians sleep at night. Part of the reason is that an extra $250k to $500k on top of already calculated economic damages is still a heck of a lot of money. Part of it is that it doesn't change the underlying culture that produced the mess. You see, medical malpractice is part of a larger concept, which is professional malpractice. Professional malpractice is part of an even larger concept, which is consumer protection.

You see, the concept of consumer protection, which is certainly a hot topic now, barely existed a century ago. It is new. While it's earliest implementations were of a relatively benign nature, it has become the beast that is poised to destroy the modern world. It was once assumed that the use of products or services came with risks. Many of these risks were inherint, no one really questioned them, and it was common sense that the choice to use a product or service was to take on the obvious risks. If I bought a horse in 1890, it was poorly behaved, and I proceeded to fall off and break my neck, my family had no concept they should sue the previous horse owner for its behavior. Falling off of the horse is an inherint risk in riding a horse. No amount of protection, skill, equipment, etc... will ever make riding a horse 100% fall proof.

Early implementation of consumer protection occurred when licensing went from being a pure tax to being a tax AND qualifying process. In the early part of the 20th century, a medical license could be had in a number of states for the price of $5, there was no real required or standardized training necessary to get one, and the purpose of the license was really for the state to collect $5. Licensing was one of the earliest implements of consumer protection. Early licensure rarely had anything to do with the state telling people how to do things. Early changes in medicine, law, architecture, engineering, etc... were really supposed to show that the people performing these tasks had actually studied their respective professions, not to tell them how to practice.

This really goes back to the concept of a contract in common law and all throughout history. Free and competent adults could make determinations of risk and benefit and agree to essentially anything, as long as neither was coerced. In the past, to end up in court, one would have had to violate the agreement. Period. There were very few rules governing what the agreement could be. The same was largely true within licensed professions. The medical license implied that the doctor had studied medicine, but the contract for treatment thereafter was between the doctor and the patient. If there was an adverse outcome, very few people thought that it was the doctor's fault if he honored the contract.

Early malpractice concepts were largely contract disputes. These might include removing a mass that the patient had never agreed to have removed or giving a therapy never agreed upon. The concept of a standard of care came later.

As the century progressed, the concept of consumer protection moved forward to include things that didn't work, then things that had unintended side effects, then things that did work but produced negative outcomes. All the while, the government got more and more involved in the business of telling people how to do things and violating rules of the government became a secondary source of liability exposure on top of violating the actual contract.

Here's a rough scale broken down into 20 year increments (with some variation from region to region) on how liability impacted physicians over time. This is how one avoided liability implemented for consumer protection:

1900: Physician is a person who enters an agreement to provide medical treatment and must provide the treatment within the agreement

1920: Physician is a person who graduated from Hopkins style medical school in order to get license and then enters an agreement to provide medical treatment and must provide the treatment within the agreement

1940: Physician is a person who graduated from Hopkins style medical school and completes atleast a year of medical internship and then enters an agreement to provide medical treatment and must provide the treatment within the agreement.

1960: Essentially the same as 1940, though early concepts of negligence due to failure to follow standards of care periodically impacting physicians

Late 1960s- MEDICARE

1980: Physician is aperson who graduated from Hopkins style medical school, completes medical internship, probably completes a residency, might complete a fellowship, and is then obligated to provide care both in keeping with an agreement with the patient AND in concordance with the concept of "standard of care," which is not explicitly stated anywhere, varies between region and specialty, and is oftened proposed by someone making a lot of money from the side that brought the suit. Non-economic damages are in full swing, so courts and lay juries attempt to attach dollar amounts to the value of having tea on the porch with one's now deceased grandmother or pain and suffering at the loss.

2000: Same as 1980 PLUS consumer protection now ALSO applies to government and third party payers. Improper coding, documentation, use of procedureal etiquette, etc... can result in civil liability as well as possible criminal liability.

One might say that this has run up the price a bit. It has, but it really mirrors what happened in other industries. Why do you think there are all of the ridiculous warnings on products. If one spilled coffee on himself in 1900, he was a klutz. Today, he is a millionaire. In 1900, no one though that they needed a "hot when heated" warning. One can apply this concept similarly to the use of sleds as weapons, placing small objects in the mouths of infants, etc... The other major change is that in the past, the consumer would have been largely responsible for anything that did happen. Today, it's the producer. It goes something like this:

1900: Consumer buys product after inspecting. It doesn't work. Oh well

1950: Consumer buys product after insecting. It doesn't work. He may recover the money he spent plus possble attorneys fees (if malicious intent is found). If it does work though, and he breaks it or uses it improperly, he may not recover.

2000: Consumer buys product after inspecting. It doesn't work. He may recover money spent plus possible non-economic damages, plus attorney's fees. He may also recover if it does work and he uses it improperly if not warned. If I use my sled as a weapon and hurt someone, I may argue that I didn't know that the sled being used as a weapon instead of a sled might hurt someone. If I use the product correctly, and it works, but someone gets hurt, I may still win. An example is firearm manufacturer that produced a perfectly functioning pistol that worked exactly as it was supposed to losing a suit when a victim that was shot by the pistol sued the manufacturer, as opposed to the guy who SHOT HIM.

With examples like this, it's no wonder that everything is out of control. You can't protect yourself when you are responsible for products and services that are made or done correctly but still produce poor outcomes. You can't agree anymore to have someone wave the right to sue for a poor outcome in a situation likely to produce one. This isn't just in medicine. It applies to anyone who produces anything. The current system ALWAYS punishes the producer over the consumer, wheras in the past, the concept was to put them on equal footing. It creates a system in which we progressively discourage production. There's no quicker way to eliminate all of the technilogical gains that are producing the very things that consumers are now "entitled" to in 100% perfect working order all the time with no errors or less than optimal endings. By punishing producers long enough, society will simply begin to implode. In this case, the physician is just another producer, and malpractice is simply another symptom of a culture in which the consumer expects perfect outcomes from every producer with every product and service 100% of the time. Change the culture and you fix malpractice. Reform does little.

A quick thought

While completing an outpatient clerkship, I recently had a strange realization about all that was wrong with medicine at my preceptors office. A patient came in with a relatively simple abcess vs. cyst on the medial thigh. It was relatively superficial, not located near anything major, and my preceptor had extensive urgent care experience dealing with things just like this. In fact, I've done the I&D on similar lesions in medical school. So I asked, "are you going to drain that thing?" with of course the glimmer of hope that I might be able to do it.

He said no.

This patient's insurance wouldn't pay him to do it. As he put it, "I don't work for free." He instead spent 20 minutes on the phone referring to a general surgeon, getting approvals, etc... The patient's insurance was willing to pay a PCP bill, send the patient to a surgeon and pay that bill, and then have the patient return to both for more billing. What a bizarre system in which we send the patient to two extra appointments, pay for both, and waste the time of a highly qualified practicioner on the phone all for a simple procedure that the med student could have done and the doctor had done 1000 times before. You wonder why we spend so much money. There must be no real competition in the local insurance industry, because there is no way such a stupid system could survive any real competition.

Marginal Utility Becomes Mainstream (The Right and the Wrong Way to Do It)

First of all, I aplogize for being absent for so long. Life has a way of keeping you busy, and I've learned first hand how busy a person can be. Anyway, enough about me.

It is absolutely clear that in modern medicine, a great deal of what we do is of marginal utility. We can look at this both in the sense of the utility of the treatment as to how it impacts whatever its endpoint may be AND the expense of a treatment versus how much value that endpoint actually provides. An example of the first might be the use of expensive MRI imaging on every nebulous back, knee, shoulder, neck, etc... pain. An example of the second might be $5000/day ICU care on a demented 90 year old with metastatic pancreatic cancer. In the first case, the cost is high, the yield is mostly low, and the data is often hard to interperet. In the second case, we can only hope to provide a limited number of days or weeks to the patient, with very little in the way of benefit in even the best case scenario. Being mainstream doesn't exclude something from being marginal.

History is full of many marginal items becoming mainstream. As they improve, the world adapts to them, and they often cease being marginal. Before Henry Ford, the car was an exclusive oddity for wealthy people. Poor people walked, took horses, etc... as they had for millenia. One day, Mr. Ford had a vision of mass automobile production at a price that the workers building the cars could afford. In comes the assembly line, the Model T Ford, and over the next couple of decades we went from a nation that walked and rode to a nation that drove. Newer cities sprang up around in a world in which people could travel long distances with ease, and all across the sun belt, it is now hard to call a car marginal. It's almost impossible to get ahead without one. A good way to enter the mainstream is to cease being of marginal relative value.

Television, the personal computer, and most recently the cell phone all fit into this category. They all have one thing in common. When they were of marginal utility, they were expensive. They became inexpensive first, and THEN they became the standard. The majority of people can afford these things, and that is why they entered the mainstream. Beforehand, the inaffordability prevented them from becoming common, and the people who sold them HAD to find a way to make them affordable in order to sell them. The incentive is to drive price DOWN.

This is in stark contrast to medical care. In the past, medicine followed this model. Pre-1970s (read medicare age) medicine saw numerous technologies from X-rays to Penicillin go from expensive oddities for the rich and well connected to common and affordable in a few short years, following the same model that ALL OTHER TECHNOLOGY uses to become cheaper. However, since the '70s, we've had an explosion of technologies of progressively more marginal utility at increasing expense. We went from X-rays to CTs to MRIs to PET scans and other nuclear scans. It seems quite clear that there is progression in which each step adds progressively less than the previous step added at an exponential increase in cost. Going from no imaging to having X-rays is far more important than going from CT to MRI.

When Medicare entered the market in the '70s, all incentive to drive down costs began to diminish. As government payment systems took over a progressively larger proportion of payments, incentives were turned on their heads. The incentive is to create MORE expense in order to claim a greater proportion of the pie. As is commonly understood, the incentive of a salesman is to claim he needs the least money for his product while the incentive of a beauracrat is to claim he needs to most.

By allowing access to the rich first for newer technologies, it allows them take hold. The existance of higher stores of wealth creates incentive for people to create marginal technologies. The natural progression is for these technologies to become progressively cheaper as people find a market in progressively poorer classes. Taking higher technology and expensive goods and making them affordable has been the success model for companies such as Walmart. Almost everything starts as the domain of the rich and in a couple of generations becomes a seen necessity for the poor.

We will use the CT and the personal computer as our example. Since the early 80s, CT have added some higher resolution and gotten quicker, but they generally do the same thing. Over that time, their price has gone up significantly. In fact, I cannot pay in inflation adjusted dollars the same amount for a 1980s CT scan than I could in the 1980s. The price is stagnant to significantly increased. The personal computer on the other hand was a dreadful box that required a long time to boot from a series of cards, could do little but word processing and simple calculations, and was hard to access. In the same period, it can now do what most supercomputers could do in earlier times and at a much lower price. The $300 Dell Cheapie is infinitely more powerful than the $5000 home PC of 1980.

Over that time, the government took over the bulk of healthcare costs, and various hospitals, Radiology groups, etc... argued for the need for MORE money for CTs. They lobbied and they won. Meanwhile, the computer was sold in near free market conditions. Newcomers such as Dell and Gateway entered the market and competed against the old time Compaqs and IBMs. Prices went down. Over that same period of time Microsoft and other software giants emerged and provided progressively cheaper options for software that did progressively more.

You see, now most people can get a computer and most people can get a CT scan. The computer is the right way to turn the marginal into the mainstream. A person goes, pays a price they can afford and takes one. There is no red tape, no roadblocks, no obstacles. The same person must beg for a CT from their insurance company or go to the very expensive ER. They must often wait for days. They must pay progressively MORE for insurance to cover the same CT, and the CT costs more than it did 20 years ago. The legal scenario of the modern world makes the CT mainstream, because we ALL have to order it, but it has gotten no more affordable. This is the way to take something mainstream that will simultaneously BANKRUPT the system for the sake of remaining mainstream, as the treatment is often still marginal. This is not an issue with the PC, which entered the mainstream by no longer having a marginal cost-benefit.

In summary, the MRI for nebulous pain symptoms is of marginal utility because of the cost. As costs go down, the cost-benefit improves, and its use becomes less marginal. The ICU stay is marginal because at $5000/day it provides little benefit. It is the same problem. At $100 an MRI would be of much greater relative utility than an MRI at $1000. However, no one will find a way to provide a $100 MRI as long as there is a non market payer providing $1000. There is NO incentive to drive the price down, and the mainstream imaging will have marginal value.

There. It was fast written, rambles a little, but atleast I'm posting again.