19 March 2009

Ambitious or Crazy?

It's not like comprehensive health care reform and universal coverage was going to be a simple thing.   The costs are just staggering -- the consensus estimate has been $100 billion per year, with some estimates running to $150 Bn annually.   The unlikely bedfellows are growing more and more uneasy, as unions, businesses, and insurers begin to eye one another warily.  The interest groups, including the physicians' lobbies, are greedily (and apprehensively) eyeing the pile of money and wondering how it can be divided up.   Add to that the surprising and earnest acknowledgment from the administration that health care costs must be contained for this to work.

So it's not as if Obama was setting himself up for a small challenge in undertaking reform.

But did he really have to go and open this can of worms?
The Obama administration and key congressional Democrats are taking a hard look at the nation's medical malpractice system as part of a broader health care overhaul.
Wow.  As if there weren't enough possible roadblocks to health reform, ya gotta throw this in, too?

To my surprise, there are signals from influential democrats that malpractice reform may actually be on the table in a meaningful way:
  • President Obama told business leaders last week that ideas to save money like "medical liability issues - I think all those things have to be on the table."
  • "It's an essential piece for there to be enduring reform - reform that will stick and will get a significant bipartisan vote in the United States Senate," said Sen. Ron Wyden (D., Ore.)
  • Senate Finance Committee Chairman Max Baucus (D., Mont.) cites costs including fast-rising medical malpractice insurance premiums and so-called defensive medicine, [and] has proposed giving states grants to develop alternate litigation, such as "health courts" whose judges have health care expertise.
  • Rep. Rob Andrews (D., N.J.), who chairs an Education and Labor health subcommittee: "It's hard for me to imagine a result that gets to the president's desk that doesn't deal with the medical malpractice issue in some way,"
The AMA takes a predictable position on the matter:   “If the bill doesn’t have medical liability reform in it, then we don’t see how it is going to be successful in controlling costs,” said Dr. James Rohack, president-elect of the AMA. “Why spend the political capital and energy in passing a bill if it is not successful?”  And in response, the ATLA (Orwellianly renamed the American Association for Justice) is circulating a 29-page pamphlet opposing its inclusion.

My suspicion is that this won't make it into the final package -- it's too explosive, and has too much potential to derail the whole thing.   However, its inclusion might be a useful tool to co-opt the AMA and suspicious physicians' lobbies into support (or at least to mitigate their resistance).  It may also be a bargaining chip to bring along some republican support.

Quite frankly, the biggest argument against inclusion of med mal reform in the "cost savings" part of the plan is that it is not entirely relevant.  Estimates vary wildly as to the systemic costs of liability and defensive medicine, but I suspect that even the dream package of med-mal reform would not realize the huge savings necessary to include it as an integral element of cost control.  Accept for the sake of argument the higher estimate, that the costs are $200 Bn annually, which includes defensive medicine.   Is it reasonable to expect that the culture of aggressive testing, CYA practice, and the stigma of missing a diagnosis will just evaporate?   I doubt it.  As long as there exists the idea of these "bad doctors" who hurt patients, doctors will still fear being labeled and punished, and practices will change little.   There may be some marginal saving to be had there, but it won't be $200 Bn, and probably not a tenth of that.   Furthermore, if there were no-fault injury compensation funds established, that would indeed go a long way towards limiting the infrequent and egregious jackpot jury awards.   But that might be balanced by the larger number of smaller payouts for cases which occur today but never see the light of day in the high cost-to-entry litigation system we now have.  If malpractice insurance premiums are actuarily sound (a big if), then premium prices should be minimally affected by that sort of cost-shifting.

Perhaps I'm being too nihilistic.   It's inarguable that the liability system is broken and needs to be fixed.   Comprehensive reform presents an opportunity to sever the Gordian knot.   Maybe Obama is crazy taking it on, but maybe, just maybe, he's crazy like a fox.

Let's hope.


  1. Yeah, lets hope.

    I always find it interesting that proponents of Universal Health Coverage always ignore the colossal failure of Hawaii's attempt. And HA wasn't even providing to everyone---just children. Yet they went bankrupt within 6 months.

    The numbers just don't add up, yet this always gets overlooked. Yikes!

  2. I am in favour of medical courts. Throw out the lay juries and let experts decide the negligence part.

  3. forget the actual costs. the current malpractice climate makes practicing medicine not worthwhile for many physicians. isn't that enough of a problem?

  4. Even if Obama wants to do it I don't think he has the political muscle to push anything like that through Congress. Listen I think that Jimmy Carter was one of our worse presidents, but the fact that he had to deal with the jackals in Congress went a long way to making an already bad president even worse.

    Which is what is going to happen to Obama. He might want to do everything you alluded to, but no way will the jackals in his own party allow that to happen. Forget all the populist rhetoric coming from the democrats, because at the end of the day they know where their bread is buttered.

  5. "Crazy or Ambitious?"

    Both, and that is a bad combo.

  6. Is it reasonable to expect that the culture of aggressive testing, CYA practice, and the stigma of missing a diagnosis will just evaporate?

    CYA is not marginal. It is the primary driving force in doctor behavior. I see it as a radical means of cost savings.

  7. Amy, now almost all children are covered, either through their parents' policy or through the SCHIP program. So while the HI experiment didn't work, it has now been mostly accomplished nationwide.


  8. jz,

    You are right that CYA medicine is a huge cost. I'm by far the most cavalier (I mean clinical) of the docs in our group and even I do a large number of tests that are, well, marginally indicated. Then I see the more cautious docs burning out the CT scanner, and just shake my head. the expense is phenomenal.

    But my point was that even if there were malpractice reform, I don't think that would change much. Doctors in the US are trained and acculturated to be highly risk-averse. The risks of being wrong, of missing a diagnosis, of getting in trouble, of being a "bad doctor" -- all those risks will still be there even post malpractice reform. I think that (sadly) the CYA medicine will not go away if there is med mal reform. For that reason, I do not hold out much hope that it will provide the huge cost savings that some see.

  9. It's certainly elegant and simple to talk about malpractice reform, and many groups make great talking points out of it.

    The fundamental problem isn't even being addressed though. There is a basic organic lack of personal responsibility in this country. And that goes from the patients all the way up to administration.

    Refreshing would be hearing a doc say, "Yes, I made a decision. In retrospect it didn't have the outcome we wanted, but given the information I had at the time I'd make that decision again."

    There is so much blame shifting in this country nobody knows who to believe anymore, let alone themselves. When faced with truth and integrity most people these days get angry and hostile because they don't know how to deal with it.

  10. I'm with ERP on this one. Given my recent experience on jury duty, lawyers in my county dismiss potential jurors with these characteristics: anyone working in a technical or managerial (IT, engineer, chemist, etc.) position; anyone pursuing higher education or possessing a post-graduate degree; anyone whose responses indicate they will make decisions based on facts and logic rather than on emotion; people of color. There is no way any doctor - good or bad, rightly or wrongly accused - can get a jury of his peers. There has to be a better way to fairly compensate those who are injured by a bad doctor and throw out cases of people dissatisfied with an outcome, when the doctor(s) did nothing bad or wrong (as with the recent rulings by the Vaccine Court).


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