This 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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Over 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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A 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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A 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 KevinMD.com, 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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• 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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Republicans can’t wrap their heads around the idea that sometimes the most efficient markets are not the freest ones, and so they don’t really have any positive proposals for what to do about our health care mess. They don’t, for example, have any proposals for what to do about the fifty percent of Americans who now have preexisting conditions that could disqualify them from private health insurance.
Their one single, shimmering idea about how to cut health care costs is to reform medical malpractice law, primarily through imposing $250,000 caps on damages for pain-and-suffering. Regular readers of this blog will know that it’s a proposal that is as misguided as it is trivial. According to the most recent survey of the subject, published in the journal Health Affairs, the direct costs of medical malpractice – insurance premiums, insurance company payouts to the victims and defense lawyer costs – amount to 0.5% of total health care spending. Throw in the researchers’ best estimates of the cost of “defensive medicine” and the total costs of medical malpractice liability – both direct and indirect amount to 2.4% of health care spending. So even if we could eliminate the costs of medical malpractice entirely we’d only shave 2.4% off our health care spending. And, if we were to realize fully this 2.4% savings, it would mean completely stiffing the victims of even the most egregious medical malpractice — essentially what the Republican “plan” does.
Unfortunately President Obama lent the Republicans’ eminently bad ideas a patina of seriousness this week during his State of the Union, when he noted: “Still, I’m willing to look at other ideas to bring down costs, including one that the Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.”
In light of the President’s disappointing and confounding remarks, this humble blog herewith offers President Obama (or at least its readership) seven ways of cutting health care costs without doing so on the backs of those crippled and maimed by medical malpractice.

• Medical Hot-Spotting: Regular readers of this blog will know that one of its heroes is Dr. Atul Gawande, probably the most creative and insightful thinker about health care policy that we have. Gawande’s latest New Yorker article is finally out from behind the paywall and it’s a terrific story about a relatively new cost-control technique called “hot spotting.” It involves identifying those hugely expensive patients who are responsible for a tremendously disproportionate percentage of health care costs and then delivering to them the social services and customized medical care that they need.
  Dr. Jeffrey Brenner, one of the main proponents of hot-spotting, was inspired by the Compstat crime-tracking system that Commissioner William Bratton first implemented in New York and that contributed to the dramatic drop in violent crime rates there and in other cities that have adopted the system. Compstat micro-maps crime data and allows police to shift patrols to various hot spots that flare up. When Dr. Brenner applied the same mapping technique to health care costs in Camden, NJ he found that a few buildings in Camden – a nursing home and a public housing project – were costing taxpayers a fortune in health care costs. Zooming in further, Dr. Brenner found a small group of people who were costing the system a fortune – one patient had a $3.5 million annual health care tab. Thirty percent of Camden’s health care spending went to one percent of its residents.
  Dr. Brenner developed a system to deliver intensive preventive care to this handful of patients – by having doctors and social workers make sure that these patients showed up for follow-up appointments, that they took medications regularly, that they got prescriptions refilled, etc. And Dr. Brenner’s program has succeeded: its patients have cut their (massive) health care bills by fifty-six percent.
  Others profiled in the story – from Dr. Rushika Fernandopulle to the software company Verisk – have experienced similar successes by identifying the highest-cost patients and targeting them for specialized care.
  (The themes of Dr. Gawande’s article reminded me of a favorite Malcolm Gladwell article – “Million Dollar Murray” – about how we might actually lower welfare costs by spending more on welfare for certain particularly troubled recipients).
  Of course, as Dr. Gawande points out, special interests, like hospitals, are likely to lobby against pouring money into hot-spotting because hot-spotting reduces the demand for their services. So it is especially important, President Obama, that you use your bully pulpit to back hot-spotting.

• Reduce Unnecessary Surgeries By Educating Patients About Whether The Guidelines Indicate Surgery For Their Conditions: A while back, Dr. Neil Baum had a great blog post over at KevinMD.com on seventeen ways patients can protect themselves from medical malpractice. One of the best pieces of advice that Dr. Baum had was to urge patients to consult the National Guidelines Clearinghouse to see what treatment the most recent research suggested for their conditions and to challenge their doctor if he recommended a surgery or procedure that was contrary to the Guidelines.
  Educating patients about Guidelines could help address some problems that have reached epidemic proportions. Since the time of Dr. Baum’s blog post, the American Medical Association has published a study about the use of implantable cardiac defibrillators showing that one-in-five defibrillator surgeries are performed outside of situations where the guidelines recommend surgery. The patients who receive defibrillators outside the circumstances where the guidelines recommend surgery are three times more likely to die.
  Of course, if you’re hospitalized three weeks after a heart attack and a doctor recommends defibrillator surgery to you, you’re likely to follow his advice if you don’t know that the evidence shows that you’re likely to be harmed by having surgery so soon after a heart attack.
  The only people benefiting from these unnecessary surgeries are the medical device manufacturers – who make tens of thousands of dollars from every defibrillator and spinal fusion surgery.

• Reduce Smoking and Obesity: Yes, it’s really that simple. I’m always amused that the same Republicans who oppose an expanded role for government in health care are the same ones who have no problems with the corn subsidies that make corn so cheap that it’s converted in high-calorie high-fructose corn syrup that sweetens our sodas and contributes to obesity. If government’s the problem in health care why is welfare for farmers so good?

• Implement Policies That Will Lead To More Income Equality: Income inequality actually has a profoundly negative effect on public health. Societies in the developed world with higher rates of inequality also have higher rates – sometimes ten times higher – of mental illness, infant mortality, obesity, teenage pregnancies, homicide, suicide and heart disease. Developed market democracies with high levels of equality – such as Japan, Sweden and Norway – are healthier.
  This relationship also holds within the United States. States with high levels of income equality, such as New Hampshire, Vermont and Utah, are healthier than Southern states and New York, where there are high levels of inequality. You can listen here to a great NPR podcast about “The Spirit Level,” the new book by Drs. Richard Wilkinson and Kate Pickett, about the effects of inequality on public health.

• Loosen Professional Licensure Requirements: This is a libertarian idea that I’m surprised that Republicans don’t get behind. Part of the reason why health care is expensive is that doctors are scarce and therefore command high salaries. Doctors are scarce in part because of artificial barriers to entry – in the form of licensure requirements for the practice of medicine.
  The anti-competitive and protectionist policies of state medical boards make it difficult for highly-qualified foreign doctors to practice here. They mean that you can’t get a botox injection at a day spa and have to go to a dermatologist instead. And that your dental hygienist can’t clean teeth outside of a dentist’s office where she is supervised.
  Let’s see what medical procedures could be performed just as well (and more cheaply) by paraprofessionals and give them the freedom to compete with doctors.

• Shift Status Competition Among Doctors From Dollars To Prestige: Regular readers of this blog are very familiar with Dr. Atul Gawande’s investigation of why Medicare costs in McAllen, TX are double what they are in the nearly demographically identical city of El Paso, TX. Medicare costs in McAllen, TX are nearly the highest in the country.
  Dr. Gawande’s explanation was simple: an entrepreneurial ethos of making as much money as possible had replaced an ethos of professionalism among many of McAllen’s doctors. Meanwhile, health care costs are low and the quality-of-care is excellent in academic communities like Hanover, NH (Dartmouth Medical) and Rochester, MN (where the Mayo Clinic is based).
  My guess is that doctors in those tiny academic communities don’t compete for dollars; my guess is that status competition among doctors there is primarily based on who’s published what article most recently in which prestigious journal. We need to find a way to get doctors to compete among each not for big bucks, but for prestige and professional esteem.

• Spend More On Pure Science:The Golden Age of Pharma is over and pharma companies are no longer willing to invest the money in the fundamental science that will lead to the new wonder drugs and therapies of tomorrow. We need more programs like this new NIH program focused on getting basic R&D of new drugs done and then handing the baton off to pharma companies to bring the drugs to development.

So there you have it, seven ideas for lowering the cost of health care without doing so at the expense of the victims of medical malpractice.

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If there’s one theme that this blog has hammered away at relentlessly, it’s the importance of checklists in improving patient safety. In a massive World Health Organization study, checklists were shown to reduce surgical deaths by forty-seven percent and major complications by thirty-six percent. Yet only one-quarter of American hospitals are using checklists.
Now comes a Dutch study, published in the Annals of Surgery, that reviews the errors committed by doctors in 294 successful Dutch medical malpractice lawsuits. The study found that in twenty-nine percent of the medical malpractice lawsuits, the error that the doctors committed would have been listed on the relevant checklist. Thus, had all the Dutch doctors adhered to the relevant checklist, there would have been nearly one-third fewer medical malpractice cases.
The stuff of the typical surgical checklist is not rocket science. A typical checklist prompts doctors to make sure the operating schedule is correct, that all the necessary equipment is at hand and that the surgical area is marked, among other things.
Reacting to the study, Boston-based surgeon Atul Gawande, one of the architects of the WHO pilot project, had strong words for surgeons who do not follow checklists: “This kind of evidence indicates that surgeons who do not use one of these checklists are endangering patients.”

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As reported by Liz Kowalczyk of the Boston Globe, Massachusetts has become the first state in the nation to post online all payments that drug and medical device companies make to the state’s health care providers. You can use the database for yourself by clicking here.
For years, Minnesota has published similar information regarding its health care providers, but its database is nowhere near as comprehensive or user-friendly as the new Massachusetts database.
In most of the country, obtaining information about drug company payments to doctors is tremendously difficult. As noted in a previous blog post, Sen. Chuck Grassley had to use some Congressional muscle to get the nation’s largest medical device manufacturer – Medtronic – to reveal the payments that it makes to doctors. In addition, as underscored by the Wall Street Journal’s investigative series “Secrets of the System,” connecting drug company payments to doctors to the types of treatment they prescribe for their patients, is made very difficult by an old federal court order that exempts Medicare from having to provide such information pursuant to Freedom of Information Act requests.
The new Massachusetts database is a good day for transparency and for more open doctor-patient dialogues.

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Over the past four months, orthopedic surgeons at Beth Israel Deaconess Medical Center have committed the same surgical error three different times – by operating on the wrong vertebra of patients undergoing back surgery.
According to recent news stories about the errors, two of the “wrong site” surgical errors were uncovered only after patients complaining of ongoing back pain underwent post-operative x-rays. One surgeon committed the same “wrong level” error twice between September and December of 2010.
After the third error occurred, the Boston hospital implemented new procedures to avoid further repetition of the error. The new procedures include following a checklist developed by New England Baptist Hospital to help surgeons mark the correct vertebrae during surgery. We’ve blogged about the importance of such checklists and American hospitals’ reluctance to adopt them here, here and here.
Thankfully, none of the patients seem to have suffered any permanent harm as a result of the medical mistakes and at least one patient’s back pain seems to have spontaneously resolved even after the wrong vertebra was operated on.
Dr. Kenneth Sands, senior vice president of health care quality for Beth Israel Deaconess, said that the spate of back surgery errors, “…is really strange and we really don’t have an answer as to why these happened” in a cluster.
In at least one of the cases, however, it appears that the presiding surgeon and a surgical fellow who was assisting him followed different systems for numbering the vertebrae and, consequently, a miscommunication occurred about what vertebra was to be operated on.
The answer to the age-old question, “How many surgeons does it take to count your vertebrae?” appears to be, “More than two, at least if they’re using different numbering systems.”
Let’s hope the new checklists at Beth Israel Deaconess get their surgeons on the same page.

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A couple of weeks ago, I blogged about the divergent approaches that we have taken to addressing the public health problems of medical malpractice and auto accidents. We seem to have taken a “hands off” approach to medical malpractice (even though it kills 100,000 people a year), going so far as to enact “tort reform” that insulates insurance companies from having to pay out in medical malpractice lawsuits. On the other hand, we seem to have taken a “get tough” approach to car accidents, cracking down on texting and driving while intoxicated and insisting that car manufacturers offer new safety devices such as airbags.
In reading through two new journal articles touching on physician fatigue, it dawned on me that we also take a tougher approach to operator fatigue on our roadways and in our airways than we do in the operating room. We subject truck drivers to stringent “Hours of Service” requirements to insure that their fatigue doesn’t harm innocent people who share the roadway with them, but, aside from some lax regulation of the number of hours that medical residents can be forced to work, doctors have a great deal of autonomy in deciding whether they should keep on truckin’ or take a snooze.
New research, however, is calling into question whether this is such a good idea. A recent journal article in the Journal of the American College of Radiology (hat tip Dr. Bob Wachter) shows that, over the course of an eight-hour work day (8 a.m.-4 p.m.), radiologists suffered a statistically significant decline in their ability to evaluate x-rays. As the (eight-hour) day wore on, radiologists were more likely to miss a fracture on an x-ray and to see a fracture where there was none. By the time 4 p.m. rolled around, nearly 1 in 20 more x-rays were read incorrectly. The article should be troubling because very often radiologists are working more than an eight-hour shift and very often they’re doing something more demanding than reading an x-ray – such as reading an MRI or CT scan with dozens of images.
This study follows on the heels of a 2009 article published in the Journal of the American Medical Association showing that daytime surgery patients suffer an eighty-three percent increase in complications when their surgeon is working on less than six hours sleep. Citing the JAMA study and other recent work, an essay in last week’s New England Journal of Medicine recommended the implementation of policies that would minimize the risk of a patient being treated by a sleep-deprived surgeon. The essay suggested that how much sleep a surgeon had the night before surgery might implicate issues of informed consent (!) and that patients should be informed of their surgeon’s sleep schedule the night before, with the option of postponing their surgeries if their doctor hadn’t gotten enough sleep.
Hopefully, these recent developments signal a sea change in how the medical profession addresses the issue of fatigue. In his “Wachter’s World” post on the radiology study, Dr. Wachter related a telling anecdote about the late, legendary heart surgeon Michael DeBakey. While visiting Baylor College of Medicine, someone reverentially told Dr. Wachter of Dr. DeBakey’s feat of performing sixteen open-heart surgeries in a single day. Instead of being impressed, all Dr. Wachter could think was, “Boy, I wouldn’t want to be patient #16.”
When you are possessed of Dr. DeBakey’s singular talents, you must feel an immense burden. There are more patients who need your life-saving abilities than you could possibly ever treat and have time for rest and family. But there is a tipping point where you’d be better off with the next-best doctor than you would be with Dr. DeBakey and medicine is finding out that that tipping point might be reached earlier in the day than anyone had ever imagined.

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