Peter Orzag is a super smart guy. He's a wonk's wonk. Serious, articulate and innovative, he possesses some serious nerd-fu powers, and I'm a huge fan of this former OMB director. (We all have a favorite, don't we?)
But he doesn't know jack about medical malpractice, it seems.
As President Obama noted in his speech to the American Medical Association in June 2009, too many doctors order unnecessary tests and treatments only because they believe it will protect them from a lawsuit. Instead, he said, “We need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine and encourage broader use of evidence-based guidelines.” [...] What’s needed is a much more aggressive national effort to protect doctors who follow evidence-based guidelines. That’s the only way that malpractice reform could broadly promote the adoption of best practices.
Well, it sounds great, especially from a policy nerd's point of view: you kill two birds with one stone. Encourage adoption of evidence-based medicine, and also provide doctors with much-needed protection from baseless accusations of malpractice. What's not to love?
Nothing, except the fact that it wouldn't work.
Seriously, I have reviewed lots of med mal cases, and, sadly, "failure to follow evidence-based standards" isn't a common allegation of professional negligence. It's "failure to diagnose" and technical errors that tend to be the big money-losers in the legal arena. Evidence-based standards don't help.
Consider the biggest money-loser in Emergency Medicine: missed MI. I'm not sure there are formal evidence-based standards for the diagnosis of myocardial infarction, but if there were they would probably be pretty straightforward, along the lines of get an ECG and order serum troponin, maybe with some subrecommendations about serial troponins if the first tests were negative; most of the existing guidelines focus on the most efficacious proven treatments of MI once it has been identified. But if I may slightly fictionalize a case I recently reviewed, there was a guy who presented in the ER with a toothache. He thought he lost a filling and was triaged to fast track. He never complained of chest pain, though he did have nausea and vomiting (attributed to the tooth pain) and a triage nurse had recorded a complaint of left arm numbness. He was discharged with penicillin and pain medicine and a referral to a dentist. He came back with a V-Fib arrest about 8 hours later and subsequently died.
In retrospect, it's pretty apparent what happened here. The treating doctor simply never considered "chest pain" and cardiac issues as an avenue he should work up. An ECG was never ordered, because why would you? I think this case was not malpractice (that was my opinion) in that this was a very atypical presentation of the disease and most reasonably prudent physicians would not have been able to correctly diagnose this particular MI, based on the information that was available at the time the patient presented. Evidence-based standards really only apply when the diagnosis is already made, or when the presentation is typical enough that standardized work-ups are appropriate. Orzag's clever idea would not provide much of a line of defense for the physician who simply misses the diagnosis (whether it was his fault or not).
Similarly, if you do follow evidence-based standards, that won't shield you from allegations that you did so incorrectly. Another case I recall was a baby whose mother dropped it on its head and suffered an epidural hematoma. The ER doc did follow what would likely be the evidence-based guidelines and ordered a head CT. The bleed was diagnosed and treated appropriately. The child had a poor neurological outcome, and the plaintiffs later claimed that some trivial delays in the ordering of the CT scan were the cause of the bad outcome. While in this case, the delay did not cause the bad outcome, it's hard to imagine that the "I followed the guidelines" defense would quash the lawsuit, and in some cases a delay really could cause harm and perhaps should be considered as grounds for negligence.
Then, finally, there are the claims that rely on faulty technical performance. Consider a patient in whom the ER doc follows the guidelines in securing an endotracheal airway, but cannot do so and as a result the patient suffers an anoxic brain injury. Evidence-based treatment is not at all relevant to the question of the physician's competence in adequately intubating the patient.
So what I am saying is that Orzag's proposal, attractive as it is, would not be particularly effective in changing the overall culture of defensive medicine or the jackpot mentality that pervades the medicolegal culture. It would provide physician defendants with an attractive line of defense in some occasional cases, which is welcome. But as a panacea, or even as a driver of improvement in either of the desired policy arenas, it would be completely ineffective.