Saturday, April 26, 2008

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.

15 Comments:

Anonymous Half M.D. said...

The states with the best malpractice costs---such as California---have such low premiums because they have enacted laws against insurance companies, and not the court system.

1:51 PM  
Blogger MiamiMed said...

Even in these lowest of cost states, it is STILL not uncommon for practicioners to pay ~10% of net pay or more purely in malpractice insurance, without taking into account the millions still spent on defensive medicine. I think the main problem is that you simply can't solve this problem without a change in the way we view liability and responsibility, and we're not headed the right direction.

5:23 PM  
Blogger ObGynThoughts said...

I do think caps on malpractice are a good idea, since the perceptions about liability you aptly describe have been created by someone. All these thoughts "it's not me, it;s someone else" did not arise from nowhere. They were created by lawyers, sometimes for a good reason, sometimes out of greed and sometimes out of the sheer desire to win a suit. They have been readily adopted by sonsumers, since it feels good when you get paid for e.g. being clumsy.
These notions will persist until word gets around that you no longer can beome a millionaire if you spill coffee in your lap.
How do you do that? You discourage lawsuits. Caps do that. Not carrying malpractice insurance does that. How? Noone sues empty pockets. Noone sues a homeless man. If there is not reward in sight, there usually is no lawsuit. So, the thought of taking away the reward is an excellent way to curb ridiculous suits.

10:24 AM  
OpenID halfmd said...

Of course, if doctors dropped their malpractice insurance, set up dummy corporations, and then hid all of their assets, they would be truly untouchable. For added effect, declare bankruptcy and no attorney will come near you.

10:24 PM  
Blogger MiamiMed said...

But it's just not that simple. If you have any assets of value, you will still be sued, and the hospitals will ALWAYS have deep pockets. It won't stop the malpractice nightmare, that will still catch doctors up.

Think about it this way. Malpractice caps are sort of like the LMNOP treatment for pulmonary edema. It can make good control, but you're still in heart failure.

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