Defensive Medicine: Not Driven By Medical Malpractice Fears?

Dr-Jesse-Pines.jpgThis summer the journal Health Affairs concluded that the costs of medical malpractice lawsuits make up 2.5% of our health care spending. About 0.5% of that was payouts to compensate the victims of medical malpratice; the remainder was the costs of “defensive medicine” practiced by doctors. The article found that the malpractice costs were a fraction of health care costs and were dwarfed by the costs of so-called fee-for-service medicine: doctors getting paid per test performed, rather than for results obtained.
Other studies have shown that states that have passed caps on damages in medical malpractice, such as Texas, Florida and California, have not seen a reduction in the number of tests and procedures ordered by doctors.
Nevertheless, the furor about the cost of “defensive medicine” continues, revived by Republicans backing H.R. 5, a bill to place a national cap on damages in medical malpractice cases and a recent survey of seventy-four Pennsylvania orthopedic surgeons.
But, as a recent essay in Time co-authored by Drs. Jesse Pines and Zachary Meisel explains, there are lots of reasons why doctors order unnecessary tests and procedures, quite apart from any fears of being sued or desire to line their own pockets. (Hat tip to J.G. Preston at the Protect Consumer Justice blog for the link). Chief among them are doctors’ desire to avoid embarrassment in the eyes of their colleagues and young doctors’ dependence on new medical technology.
As Drs. Pines and Meisel explain, hospitals regularly schedule Morbidity and Mortality (“M&M”) seminars to help learn from past mistakes. At an M&M meeting, doctors pore over other doctors’ mistakes – mistakes that most of the time never lead to medical malpractice lawsuits. Ordering unnecessary tests and procedures helps doctors avoid the painful embarrassment of having their mistakes analyzed by their peers.
The pressure that doctors feel to be perceived as infallible in their colleagues’ eyes is a topic I’ve blogged about quite a bit before; see here, here and here. The remedy for this, I think, is not caps on damages for pain-and-suffering, but a cultural transformation within medicine. Medicine needs to embrace the cultural ethos of engineering where, mistakes are not marks of shame but opportunities to learn.
Drs. Pines and Meisel also contend that expensive medical procedures – such as CT scans – have become a technological crutch that young doctors rely upon. While a couple decades ago, a surgeon would extensively interview a patient before determining whether a CT scan is necessary, today’s young doctors order the CT scan first and only speak to the patient afterward.

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Law Blog Roundup

  • Joanne Doroshow, over at The Pop Tort (cross-posted at Huffington Post) with a great post on how extending the statutes of limitations in medical malpractice case might actually reduce the number of malpractice lawsuits against doctors. The thinking runs like this: lots of times patients know that they’ve been victims of medical malpractice but they have no idea initially precisely who was at fault. Was it the anesthetist? Was it the surgeon? The patient doesn’t know; the patient simply woke up with an injury that shouldn’t have occurred. If the medical malpractice lawyer believes it was the surgeon and sues only the surgeon, but subsequently discovers evidence that it was the anesthetist the patient might be in trouble because the statute of limitations on his claims might have run in the meantime. A lawyer in this situation might nevertheless be able to add the anesthetist to the law the lawsuit under a “relation back” theory, but that’s a dicey proposition that ultimately is up to the judge to decide. So medical malpractice lawyers face the necessity of naming more doctors initially in a lawsuit, driving up defense costs. If medical malpractice statutes of limitation were lengthened, we might paradoxically reduce the costs of such lawsuits by giving patients greater rights to sue.
  • Eric Turkewitz on how hospitals’ critical analysis privilege leads to more medical malpractice litigation
  • Professor Bernabe on the mystery of how the Supreme Court reconciles this week’s decision in Williamson v. Mazda (holding that a lawsuit claiming Mazda should’ve installed shoulder belts for a rear passenger seat was not forbidden by federal regulation that allowed manufacturers to use lap belts) with Geier v. Honda (holding that a state regulation mandating passenger side airbags was preempted by a federal regulation that did not require them).
  • Abnormal Use on the spike in jury verdicts last year and speculating on the connection to the stalled economy. Last year, ten of the largest fifty jury verdicts were in product defect cases. This theory certainly backs up the work of Alex Tabarrok who has found that the highest jury verdicts occur in jurisdictions with great disparities in wealth and an elected judiciary.

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Why Are Lives Lost To Medical Malpractice Not As Valuable As Other Lives?

medical malpractice lives value.GIFOver at the California Consumer Attorneys blog, J.G. Preston asks a question that every Congressman who supports H.R. 5, the bill to put a $250,000 cap on damages for pain-and-suffering in medical malpractice lawsuits, should be asking: Why are lives lost to medical malpractice not as valuable as other lives?
This Wednesday, The New York Times ran an article on the rising monetary value that different federal agencies assign to human life.
In formulating different safety regulations, federal agencies perform a cost-benefit analysis. They weigh the monetary cost of implementing a new safety device against the monetary value of the lives that such added regulation would save.
So, for example, when the Department of Transportation recently was considering whether to mandate stronger car roofs – a safety improvement that would save an estimated 135 lives annually that would otherwise be lost in rollover accidents – the DOT weighed the added cost of the reinforced roofs against the dollar value of the lives lost (135 lives x $6.1 million value per life) and concluded that the money spent on reinforcing car roofs would be worth it.
Each federal agency gets to assign its own value to human life. All federal agencies use a pretty similar econometric calculation for deriving the value of human life and this has resulted in a pretty similar value of human life across federal agencies. So, the FDA values each life at $7.9 million, the EPA values each life at $9.1 million and the DOT values each life at $6.1 million.
One constant, across all federal agencies, is that the value of human life is increasing. Over time, people are placing higher and higher premiums on their own lives and safety and that gets inputted into the econometric formula, driving up the value that federal agencies assign to human life.
The Office of Management and Budget now recommends that federal agencies assign a value to human life of between five and ten million dollars.
As J.G. Preston points out, the upshot of all this is that H.R. 5, the bill that would place a $250,000 cap on non-economic damages in medical malpractice lawsuits, essentially says that lives lost to medical malpractice (and there are more than 100,000 of them annually, three times as many lives as we lose in car accidents) are worth less than the lives lost to, say, environmental pollution or food poisoning or flimsy car roofs.
Does that make any sense at all?
I think when a lot of people hear about capping damages in medical malpractice lawsuits they tend to support the idea in the abstract. What they don’t realize is that, when Congressional Republicans talk capping damages in medical malpractice cases, they’re talking about valuing a human life less than a $250,000 Mercedes Benz CLK.
For more on different aspects of H.R. 5, you can read Professor Alberto Bernabe’s comprehensive post here.

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Employer’s Deductions Of Earned Wages Deemed Unlawful By The Supreme Judicial Court

Employee rights advocates experienced a notable victory under the Massachusetts Wage Act to start off the new year. In Camara v. Attorney General, the employer, ABC Disposal Service, provides curbside collection and disposal services. It instituted a policy whereby drivers determined to be at fault for accidents are provided with the option to either receive a disciplinary warning or to set off the damage allegedly caused against wages earned. The determination as to whether the driver is at fault is made by the company internally. The employee has no right to appeal the determination. Pursuant to this policy, over less than a two year period, the company deducted over $20,000 from the paychecks of 27 different employees. The question before the Supreme Judicial Court was whether this policy violated the Wage Act.

In finding that this policy, in fact, violated the Wage Act, the SJC noted that Section 148 of the Wage Act prohibits employers from entering into “special contracts” with employees that relieve the employer of the legal duty to pay wages earned:

No person shall by a special contract with an employee or by any other means exempt himself from this section or from section one hundred and fifty.

This particular clause of the Wage Act recognizes the unequal bargaining power between employer and employees. Often times, employers require employees to sign numerous forms of paperwork at the outset of employment without questioning the content. Preventing employers from leveraging their superior bargaining position to require employees to agree to a policy that avoids the full payment of wages is a paramount concern.

Notably, in reaching its decision, the SJC rejected the employer’s argument that the wages ABC Disposal deducted from its employees constituted a “valid set-off” pursuant to Section 150 of the Wage Act:

An arrangement whereby ABC serves as the sole arbiter, making a unilateral assessment of liability as well as amount of damages with no role for an independent decision maker, much less a court, and, apparently, not even an opportunity for an employee to challenge the result within the company, does not amount to “a clear and established debt owed to the employer by the employee.”

The Massachusetts Office of the Attorney General, which originally ordered restitution and imposed a civil penalty of $9,410, issued a press release praising the decision, in which Attorney General, Martha Coakley, stated:

Today’s decision is an enormous victory in our office’s efforts to protect workers and their hard earned wages from unfair business practices. The employer in this case shifted costs of doing business onto its workers who were forced to choose between giving up their wages or suffering uncertain discipline.

Overall, employees should be vigilant about wage deductions. As the Camara decision illustrates, only in limited circumstances will an employer have the discretion to withhold earned wages.

New Study Shows That FDA Loophole Used To Approve DePuy Artificial Hips Responsible For Majority Of Medical Device Recalls

DePuy ASR.gifAwhile back I blogged about the FDA’s massive recall of DePuy A.S.R. artificial hips. The DePuy artificial hips were touted as a leap forward in artificial hip technology when they debuted. They were supposed to last to last for fifteen years or more (much longer than other artificial hips) and their Articular Surface Replacement (A.S.R.) technology was supposed to help resurface portions of the hip once implanted.
As it turned out, the DePuy ASR artificial hips have worn out quickly due to metal-on-metal contact within the device and this metal-on-metal contact has resulted in toxic heavy metal ions being deposited in the bloodstream of patients, causing chronic pain, toxic reactions and, in some patients, the development of pseudotumors.
As I originally blogged about, the shocking part of all this is that the DePuy ASR never had to be subjected to clinical testing prior to its being marketed to the public. The FDA regulatory process contains a loophole – known as the “510(k) process” – that allows medical device manufacturers to sell new medical devices without any clinical trials of the device if the new device is “equivalent” to one already on the market. Even though the DePuy ASR was touted as offering next-generation advances – like the Articular Surface Replacement technology and being more durable – Johnson & Johnson, its manufacturer, never had to subject the DePuy ASR to clinical testing because it was deemed “equivalent” to other artificial hips already on the market.
Now, as reported by The New York Times, comes a new study from the Institute of Medicine showing that 81 percent of the medical devices recalled by the FDA from 2005-2009 were devices that made it to market through the 510(k) loophole. Only one-fifth of the medical devices subject to recall had been clinically tested prior to approval.
I think the DePuy ASR recall and this new study from the Institute of Medicine show that the 510(k) loophole needs to be tightened up a little. Medical devices subject to FDA regulation run the gamut from ear wax cleaning kits you buy at the drug store to implantable defibrillators that are supposed to restart your heart after cardiac arrest. Having a regulatory loophole for new-to-market devices that are equivalent to older technology benefits consumers by driving down the prices of medical devices and fostering competition. However, medical device manufacturers cannot be allowed to get away with selling cutting-edge surgically-implanted devices without any prior testing on the grounds that such technology is “equivalent” to older devices.

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Little Dogs, Lots Of Bite?

teacup chihuahua.jpgA couple of weeks ago, I blogged about a New York Times story reporting on an unexplained doubling of dog bites over the past fifteen years. The doubling was mysterious because dog ownership and the total number of dogs had increased only incrementally over the same period.
Now comes a New York Post story exploring the record number of dog bites that the Big Apple saw last year. According to the Post, toy breeds, such as chihuahuas and Shi Tzus, were the “major culprits” behind the dog bite uptick. One veterinarian says that since toy breeds are often toted around in purses to places that other dogs don’t go – such as department stores – strangers are having more contact with dogs and getting bit more often.
I’m not sure whether Gotham’s problems with toy breeds explain the national doubling in dog bites. I think the Chihuahua-in-a-purse phenomenon tends to crop up more in urban areas. And as someone who spends a lot of time with a teacup chihuahua, I don’t think that a typical bite from a toy dog is going to rack up nearly twenty thousand in medical bills – the average cost of medical treatment for a dog bite.

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Gee Whiz, Could Health Insurance Companies Really Be Pennywise And Pound Foolish?

pennywise.jpgA couple of weeks ago, after President Obama’s State of the Union, I blogged about seven ideas to cut the costs of our health care. Ideas that, unlike medical malpractice “reform,” would really make a dent in our health care spending. One of the ideas was promoting the use of medical “hotspotting” – identifying the highest-cost patients and providing them with the intensive care that they need.
One study of Camden, NJ’s health care spending found that one-third of the health care pie was spent on the costliest one percent of patients. One patient, whose annual health care bill is in the millions of dollars, was a man in his mid-40s who weighs 650 pounds and suffers from congestive heart failure, asthma, diabetes and hyperthyroidism. Unemployed, he also had no stable address.
Dr. Jeffrey Brenner, the man who did the Camden study, found that the health care costs of patients like the 650-pound man could be cut drastically if we take steps to deliver intensive services to such patients – like making sure they get to follow-up appointments and making sure their prescriptions are refilled.
Now comes a new British Medical Journal study saying that patients fail to follow-up on between 20 and 75 percent of post-discharge medical appointments. And, as reported in the Wall Street Journal Health Blog, a massive survey of doctors reveals that doctors’ number one complaint about patients is “noncompliance with advice or treatment recommendations.”
When you think about all the money that is spent because of missed appointments and the complications that result therefrom, it really boggles the mind. And I’m sure the number of missed appointments could be reduced by a number of low-cost solutions ranging from more insistent phone call reminders to providing a cab for patients who can’t arrange for their own transportation.
Sure, paying for a cab or car service to pick up a particularly needy patient costs a little, but it can also save a lot in the long run.

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ProPublica’s “Dollars For Docs” Database

old computer.jpgA while ago, I blogged about a new Massachusetts database that allows patients to look up all payments that drug and medical device companies have made to their doctors. It’s a nice tool but it’s not very user-friendly.
ProPublica has compiled a more limited but more user-friendly database that details the payments that eight drug companies have made to doctors. You can try it for yourself here.
Over at, Dr. Daniel Carlat shared his experiences of using the ProPublica database in a post entitled, “ProPublica’s Dollars for Docs: Strengths and Weaknesses.”
Dr. Carlat writes:

“Anyway, I scrolled down the chart looking for the more well-funded docs, and in doing so I quickly comprehended what is probably the most striking aspect of this database–the sheer enormity of it. Sure, I already knew from published surveys that well over 100,000 doctors receive cash from drug companies. But that number becomes much more tangible as you scroll through an endless list of doctors’ names, each associated with a specific dollar amount. The thought that runs through your mind is: “How have we allowed this to happen to our once proud profession?””

He concludes:

“The true malfeasance here is in the aggregated effect. The companies are using these legions of doctors to artificially manipulate medical discourse. Any doctor who participates in the enterprise knows exactly how they are being used. You decide whether this is “immoral” or not.”

While, as Dr. Carlat points out, the ProPublica database does not give you much idea of what the doctors receive the money for (other than its being non-research-related), I don’t really see that as a defect of the database. Databases such as these need not be a stopping point; instead they can be a starting point in the dialogue between doctor and patient.

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Health Care Roundup


  • Whistleblowing doctor fired – Medpage reports that a cardiologist whose research revealed that a number of cardiologists, including those at her own hospital, were misreading echocardiograms has been fired by her hospital. The researcher, Kiran Sagar, said in an interview, “The cardiologists weren’t happy. I think behind the scenes they were saying, ‘How can you expose our dirty laundry?’.” Dr. Sanjiv Kaul, president of the American Society of Echocardiography, said that the problem uncovered by Sagar’s research could cost hospitals money because “ultimately, it can lead to doing fewer expensive diagnostic tests.”
  • Pennsylvania Abortionist Sued For Malpractice Dozens of Times – Kermit Gosnell, the Pennsylvania abortionist charged with murder for his killing of live born infants, had been sued forty-six times for medical malpractice. Of course the insurance companies kept issuing him medical malpractice liability policies.
    A lot has been made of a recent article published in the Journal of the American Medical Association showing that a majority of doctors in some specialties, such as surgery or OB-GYN will be sued for malpractice at some point in their careers. Of course doctors like Gosnell who get sued repeatedly for their malfeasance drive up those numbers. And when you put a case in front of a jury, a jury doesn’t get to hear that the doctor has been sued for malpractice a half-dozen times before.
  • Healthcare Truth and Transparency Act of 2011 – Congress is considering a new bill, backed by the American Medical Association, called the “Healthcare Truth and Transparency Act of 2011” that will prohibit “misleading and deceptive advertising by health-care professionals.” The American Nurses Association opposes the bill, saying the legislation is part of the AMA’s “ongoing effort to limit the scope of practice of health care providers who are not physicians.”

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Race Discrimination Claim Filed Against Texas Company Alleging Rampant Use Of Racial Slurs

Race discrimination claims continue to grab headlines. In its article entitled Industrial Services Firm Faces Bias Suit, the Wall Street Journal recently reported that “[n]early 250 workers sued Turner Industries Group of Baton Rouge on Sunday, alleging racial discrimination in hiring, pay, promotions and on-the-job treatment.”

The allegations in the complaint, which numbers more than 300 pages, are especially egregious:

Robinson and his similarly situated Black co-workers have been and continue to be subjected to racially offensive graffiti displayed at Turner job sites. For example, he has seen “Nigger hang from a tree,” and “fuck you niggers, go back to Africa.” He has also seen a noose and several confederate flags hung in the bays at Turner.

Jeffery and his similarly situated Black co-workers have been subjected to racial graffiti and depictions throughout Turner facilities and job sites. The bathrooms were constantly covered in offensive comments such as, “Niggers don’t belong here,” and he has seen drawings of White people wearing KKK hats.

Jones and his similarly situated Black co-workers have been subjected to a racially hostile atmosphere at Turner’s facilities. For example, White workers would leave notes on his truck calling him “nigger” and saying, “I know you sell drugs you nigger fucker.” Jones reported these notes to management, but Turner did not do anything to stop the notes.

The Equal Employment Opportunity Commission investigated similar complaints of racial harassment at Turner Industries. In early 2010, the EEOC found that numerous instances of racial harassment occurred at the company’s Paris, Texas plant — which included the use of racial epithets and symbols of discrimination. The Dallas Morning News reported the EEOC’s findings in its article entitled,
EEOC: Black workers harassed at pipe factory in East Texas.

If you’re the victim of race discrimination and harassment, its important to act quickly to preserve your rights and hopefully put an end to the hostile work environment. Please contact us to learn more about this process and about our Firm’s special focus in this area.