American Bar Association Names This Blog One Of The Top 100 Law Blogs

ABA Award.jpgYou know how some days something unexpected happens that makes your day? Today was one of those days. I woke up to discover that this blog has been selected by the editors of American Bar Association Journal as one the Top 100 Law Blogs in all the land.
It’s a great honor to me. The ABA Journal is the publication of the American Bar Association and has a monthly readership of about half of the nation’s 1.1 million lawyers. This blog was selected as one of the Top 100 from more than 3,000 law blogs.
The ABA Journal will also be awarding “best of” honors in each of the twelve fields represented by the Top 100 blogs. You can vote for us in our category – “Torts” by clicking here and registering. But honestly, I could care less about winning that. I’m satisfied with the distinction of being chosen one of the Top 100 in my first full year of blogging.
PS – I have made a solemn vow to Eric Turkewitz to revamp this blog’s design in 2011.

Surprise, Surprise: Patient Safety Has Not Improved In Ten Years Since Landmark Study

New England Journal Medicine.gifAccording to a study published in the most recent issue of The New England Journal of Medicine, patient safety has not improved since a landmark study ten years ago that put the number of patient deaths due to medical error at 98,000 annually in American hospitals. That landmark study, conducted by The Institute of Medicine, also estimated that one million Americans each year are injured by non-fatal medical errors.
Experts hoped that the shocking death tally in the Institute of Medicine study would spur improvements in patient safety. But, as the new research reveals, those hoped for improvements have not materialized.
The new research was done by looking at ten randomly selected hospitals in North Carolina, a state that was believed to be making strides in improving patient safety. The researchers studied 2,341 hospital admissions from 2002 to 2007 and found that medical errors were made in one quarter of the cases. Ten percent of those – or 2.5% of the total admissions – were the victims of potentially life-threatening medical errors.
Dr. Christopher P. Landrigan, lead author of the new study, says, “We were disappointed but not very surprised [by the results].”
How can doctors improve patient safety? Landrigan points to reducing the number of hours worked by sleep-deprived residents, following medical checklists and implementation of electronic medical records as important steps to take, all measures that we have blogged about here, here, here and here.
Landrigan also says that we need to create a nationwide system for reporting injuries due to medical errors. Such a system would help researchers identify areas of repeated mistakes.

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Are Medical Malpractice Lawsuits To Blame For Doctors Shirking Responsibility For Their Errors?

The blog features a blog post about the story of Dr. Ring – whom we had previously blogged about here.
Dr. Pho (aka KevinMD) claims that Dr. Ring’s story is getting such heavy media attention because it’s a rarity – a practitioner owning up to a medical error in a public manner. Dr. Pho says that doctors admitting mistakes is a rarity because doctors are afraid of getting sued for admitting their mistakes. The medical malpractice system leads to concealing mistakes, Dr. Pho claims, and that’s bad for patient safety.
As one commenter to the blog post notes, “Doctors have a multitude of reasons to hide their errors, rather than the fear of litigation. There’s bad reputation, loss of self-respect, difficulty of admitting error to patients, loss of patients, and other financial injuries-as well as professional ostracism.”
The reputational harm of admitting mistakes is probably the reason why so few doctors admit mistakes even after the insurance carriers have paid out claims and the doctor no longer faces any liability whatsoever for his mistake. If Dr. Pho’s theory explained things, doctors would freely own up to mistakes once they had obtained a release of claims for settling a case. But they don’t (generally).
I think doctors don’t admit mistakes because they’re, well, doctors. As Dr. James Bagian, the VA’s chief of patient safety, notes here, doctors trace their heritage back to Hippocrates, not the trial-and-error values of the Scientific Revolution. Doctors aren’t scientists; they are healers, and this means that they are loathe to admit their mistakes.
It’s also psychologically a lot harder for a doctor to admit a mistake than a research scientist. When laboratory scientists make mistakes, the only real world effect normally is that they’ve wasted their time chasing a hypothesis that did not pan out. When doctors make mistakes, there’s a real human being, one they’ve met and know and cared for, whom they’ve hurt.
As Dr. Pho is aware, there is evidence suggesting that doctors who admit to mistakes uprfront are less likely to ultimately be sued for medical malpractice. And insurance companies study medical malpractice claims to try and develop ways of avoiding repeating the same mistakes.
Dr. Pho may be right that our medical malpractice system should be less adversarial. But fear of being sued is not the main reason, or even a substantial reason, why doctors are not forthcoming about mistakes.

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The Future Of American Health Care: Nurse-Based Care

nurse-based care.jpgIn order to control the unsustainable increases in the cost of our health care, Americans are going to have to transform the doctor-based model of care. Our doctors are already, by a wide margin, the highest paid in the world.
Doctors’ high pay is not some natural occurrence: the American Medical Association keeps a tight grip on the number of accredited medical schools and thereby artificially limits the number of doctors entering practice. Controlling the supply of doctors has the effect of driving up the price for their services.
The AMA’s policy has created an artificial scarcity of doctors. Currently, there is a shortage of 7,000 physicians, mainly in primary care. Over the next ten years one-third of physicians will retire, and the shortage will increase to 100,000 physicians across all specialties.
To succeed in driving down the cost of health care, we are either going to have to produce more doctors or reduce the demand for their services. And it appears that the direction we are moving in is reducing the demand for doctors’ services by allocating more of their customary responsibilities to nurses.
The Institute of Medicine recently issued a report on the subject entitled, “The Future of Nursing: Leading Change, Advancing Health.” And this week The Times featured a great article on the topic.
A lot of the doctors I speak to believe that in the next decade or so many patients will begin seeing nurse practitioners as their primary care. A move away from doctor-based care may benefit us all if it helps us save on health care.
But I would like to see someone loosen the AMA’s stranglehold on the supply of physicians. A few months back Matt Yglesias had a great series of posts on eliminating artificial barriers to entry into a variety of professions, including medicine. In a perfect world, we wouldn’t be facing a shortage of doctors at all.

Link Roundup

  • A belated congratulations to Eric Turkewitz on his one thousandth post. This is my 126th post this year. Eric basically doubles my annual output. On top of that, he trains for marathons, runs good times in them, and spends quality time with the kids. Oh, I nearly forgot – on top of that he runs a top-notch personal injury practice. If Eric ever teaches a class on time management, I’ll be in the front row.
  • Professor Bernabe eviscerates Professor Mello’s case for medical malpractice tort reform here.
  • You can read an interview with Professor Bernabe here. I just added “Class Action” to my Netflix queue.
  • A picture’s worth a thousand words and the Pop Tort’s picture of a hair stylist wearing a gas mask while applying a hair product containing formaldehyde speaks volumes.

Reforming Medical Culture Begins With The Elite

Dr. Ring Surgery.jpgWe’ve blogged a lot about how reforming the way that doctors and hospitals deal with medical errors requires a cultural transformation. Doctors need to stop regarding errors as signs of incompetence or intellectual weakness and need to adopt the ethos of engineering culture: mistakes are going to be made, so let’s be open and forthright about them and learn from them.
We’ve seen some movement in that direction, with medicine adopting some of the safety engineering principles of the aviation industry. But how does medicine get there? The answer is that it gets there when its elite, the profession’s best-credentialed and most respected members, own up to their mistakes and stop pretending that they’re a breed apart who don’t make mistakes.
Cultural change comes from doctors like Peter Pronovost, a MacArthur “genius grant” recipient and one of the leading clinical figures of his generation, frankly admitting that he made a grave medical error as a young physician (as previously blogged about here). This week we saw another crack in the wall as The New England Journal of Medicine published an article by Massachusetts General Hospital surgeon Peter Ring about an operation that he performed on the wrong hand of a patient in 2008.
As a Harvard-educated surgeon at Mass General Hospital (one of the world’s most renowned hospitals), Dr. Ring is, like Dr. Pronovost, a card-carrying member of the health care profession’s elite. Although Dr. Ring speculates that such a public airing of his mistake may harm his reputation among colleagues, it’s more likely to affect patient perception of him, as lay patients are generally much more ignorant of where their doctors stand in the professional hierarchy.
Dr. Ring deserves commendation for coming forward and helping to reverse the centuries-old tradition of doctors denying mistakes. When people at the pinnacle of their profession, like Dr. Pronovost and Dr. Ring admit that they too make mistakes, like us lesser mortals, it opens up space for those beneath them in the profession’s pecking order – young doctors, lesser-credentialed doctors – to admit their mistakes.
When we have a culture where doctors admit mistakes and make sure their colleagues learn from their errors, we’ll see a lot fewer “wrong site” surgeries and vastly improved patient safety.
You should read Dr. Ring’s account of the surgery here; it provides a nice illustration of how medical errors often have a multitude of causes and how responsibility is often spread throughout the operating room and even outside of it.

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Massachusetts Poised To Abandon Fee-For-Service Medicine

medical malpractice follow the money.pngAs reported by the American Medical Association (hat tip Tyler Cowen), Massachusetts is poised to enact legislation sounding the death knell of fee-for-service medicine as soon as 2011. Fee-for-service medicine refers to the system of paying doctors according to the number of services that they perform rather than by some other metric. So, for example, under the fee-for-service model (which dominates American health care), doctors are paid for each and every test and procedure that they perform. This incentive structure obviously has an effect of encouraging doctors to order more and more tests and procedures as such overtreatment is more lucrative than the alternative.
As I’ve blogged about previously, a recent article published in the journal Health Affairs estimates that the direct and indirect costs of medical malpractice lawsuits add only 2.4% percent annually to our nation’s health care tab (while compensating those injured by medical malpractice). The article stated that the cost of medical malpractice lawsuits is dwarfed by the expenses attributable to the fee-for-service model.
Under the Massachusetts legislation that could be introduced as soon as January 5, 2011, health insurers would begin paying doctors under a “global payment system” – i.e., paying doctors a flat fee based upon the number of patients seen monthly, with adjustments made for patients’ ages and health conditions. It will be interesting to see what effect this new legislation will have on health care costs.

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Medical Malpractice Waivers: A Bad Idea Whose Time Will Never Come

medical malpractice waivers.jpgIt’s become a bit of a theme on this blog lately: celebrated thinkers whose expertise lies outside of medical malpractice law dive into the medical malpractice debate, show how little they know about the issues and ultimately prove that, in this day and age of specialization for everyone from lawyers to policy wonks, they are out of their element. We saw it with Peter Orzag, the former White House budget director, whose New York Times op-ed on medical malpractice reform was so incoherent that I couldn’t figure out which of two proposals Orzag was making. In any event, either one of the proposals that Orzag might have been championing was a bad idea and the whole article just drove home to me that experts like Orzag, who is a savant when it comes to crunching budget numbers, should stick to what they know.
The same applies to law professor-turned-Obama administration figure Cass Sunstein. We’ve blogged about Sunstein before here. Sunstein has had a long and varied legal career, writing on issues ranging from constitutional law to economics. Most recently, Sunstein has become associated with the “libertarian paternalism” philosophy and behavioral economics ideas embodied in his 2008 book “Nudge.”
The premise of “Nudge” is that people should be free to make their own choices (that’s the libertarian part) but that government can nudge people in the right direction (the paternalistic part) by framing the choices in such a way that people make the wisest choice. So, for example, research shows that when most employees join a company with a 401(k) program, they have to check a box to opt in to the program. A fairly low percentage of employees make that choice. But when you change things up so that the 401(k) program is the default and employees have to check a box to opt out of it, an overwhelming number of employees will choose to participate in the 401(k). By framing choices in the right way (having employers make 401(k) participation the default), government can be both libertarian and help effect the most desirable outcome (more people saving for their retirement).
So far as Sunstein in “Nudge” sticks to these well-known experimental findings in behavioral economics, he’s on firm ground. But in one chapter of “Nudge,” Sunstein goes out on a limb and suggests that the health care system might benefit if patients or insurance companies were allowed to sign “medical malpractice waivers” – forms that would give up their rights to sue their doctor for any medical malpractice that the doctor committed, no matter how grossly negligent. Sunstein’s thinking is that patients would benefit from such waivers because the cost of health care would be lower: doctors wouldn’t have to pay for medical malpractice insurance or order unnecessary tests to make sure their patients didn’t sue them, and doctors could pass on the savings of avoiding those costs to their patients. Everyone’s a winner!
The idea is one that has received virtually no criticism or attention until the publication of an article by professors Tom Baker and Timothy Lytton in the most recent issue of the Northwestern University Law Review entitled, “Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response to Sunstein and Thaler.” You can read the article here. The article is a devastating and complete knockdown of the chapter in “Nudge” in which Sunstein proposes medical malpractice liability waivers.
Baker and Lytton point out that Sunstein (lazily) cites no empirical evidence in support of his claim that a medical malpractice “crisis” is driving up the cost of health care. Indeed, Lytton and Baker criticize Sunstein’s unsupported statements about the effect of medical malpractice lawsuits upon health insurance costs as being the kind of “polemical rhetoric” used by “tort reform advocates and widely discredited among scholars.”
Lytton and Baker also point out how many of the concepts from cognitive psychology that Sunstein invokes in other places in the book – including people’s bias toward thinking optimistically – are actually arguments against medical malpractice waivers because people will foolishly and optimistically assume that they won’t be injured by medical malpractice and accordingly will sign the waiver. Lytton and Baker also shred apart Sunstein’s analogizing a medical malpractice waiver to a waiver that would preclude someone from suing her hairdresser for a bad haircut.
For me, however, the best critique of why Sunstein’s empirical data-free proposal is flawed, is in looking at the numbers and asking: How much would medical malpractice waivers save the average patient? Well, the most recent and best estimate of how much medical malpractice adds to the cost of health care can be found in this summer’s study published in the medical journal Health Affairs, previously blogged about here. This study estimates the annual costs of medical malpractice at $45.6 billion, or about 2.4% of our nation’s annual health care tab. This figure includes both the direct costs of medical malpractice – insurance payouts to injured patients, fees paid to defense lawyers to defend med mal cases – and the best estimate of the costs of “defensive medicine” (tests that doctors do not think are necessary but that they order to defend themselves in medical malpractice claims).
So, if you signed a medical malpractice waiver, what sort of savings would you reap? The best case scenario would be that a doctor would agree to lop 2.4% percent off your medical bill. On a procedure that cost $1,000, that would mean that you (or your health insurer) would save a whopping $24! And if the doctor paralyzed you through his treatment, you would have no right to sue, even if the doctor was drunk or under the influence of drugs while performing the surgery.
Sunstein is a prolific author. But, in reading his work on medical malpractice waivers, it’s obvious that he’s been spending too much of his time writing and not enough of his time getting acquainted with the ins-and-outs of health care costs in this country. It’s a shame that his work in “Nudge” (which largely draws upon experimental work carried out by economists) will, merely by virtue of his legal celebrity, get more attention than the more careful and thoughtful work of Professors Lytton and Baker.

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Blawgosphere Roundup

Here it is: this week’s best of the blawgosphere (or at least the best of what I read):

  • Eric Turkewitz strips away the hysteria and explains just how and why a four-year old can be sued for negligence in his latest post here.
  • Over at Huffington Post, Joanne Doroshow explains the cyclical fluctations in insurance premiums and how premium increases are not really driven by lawsuit costs.
  • Over at Concurring Opinions, Miriam Cherry points to some evidence suggesting that cell phone carriers are turning over cell phone records to auto insurance companies investigating crashes. (Perhaps the customer service rep Cherry spoke with simply meant that cell phone companies are producing these records if subpoenaed?).
  • He’s not a legal blogger, but I could resist tossing in this week’s quote from Boston Red Sox owner John Henry: “Medicine is not a precise science. If it were, you would never hear the phrase ‘second opinion.'” Henry evidently gets medicine, and medical malpractice lawsuits, a lot better than the people like Peter Orzag .