The True Cost of Litigation

The battle over malpractice rages on with providers on one side and the lawyers and plaintiffs on the other. The latter side feels that malpractice costs are minimal and simply represent a “cost of doing business,” while providers make the case that they endure unnecessary stress, expenses, and the impossible burden of having to be perfect, 100% of the time. More than unnecessary, providers feel, the tort system for medicine takes them away from direct care activities, and distances them psychologically from their patients.

The article 2% of Physicians Involved in Half of Malpractice Settlements but Few Doctors are Sanctioned makes the claim that malpractice is a function of “bad and incompetent providers”.

“Fewer than 2% of all physicians reporting to National Practitioner Data Bank (NPDB) over the past 25 years were responsible for half of all settlements, a total of more than $41 billion”. The implication being made is that bad doctor’s account for a majority of payouts. That’s just irresponsible hocus-pocus. Why? For for many reasons, but the first glaring one is the other half of settlements therefore come from the remaining 98% of physicians. That’s is a big piece of the medical workforce.  In addition, an obvious bit of statistical legerdemain is present. It is called sampling error.  By just looking at settlements, one only sees the tip of the iceberg.  That’s what sank the Titanic, and it has a sinking effect on the practice of medicine, too.  What is under the surface of such a view? The cost of litigation, defense, trial, deposition, and on-and-on add up to a much more massive number than $41 billion.  And, it does not end there. The costs of psychological stress, work lost, defensive medicine, cumulatively add to the huge burden malpractice litigation places on those whose are just trying to help others by means of medical science.

While the report Medscape Malpractice Report 2015: Why Most Doctors Get Sued states that “Fifty-nine percent of respondents to the Medscape survey have been named in at least one malpractice suit. Nearly half (47%) were among others named in the suit, and 12% were the only parties sued. While among the specialties surveyed, some were sued more than others, no physicians are immune. A 2010 American Medical Association (AMA) survey reported that among all physicians, 61% had been sued by late career

The last article discusses Ten Notable Physician-related Malpractice Statistics, “Most physicians will face a malpractice lawsuit at some point in their careers. More than 61 percent of doctors older than 55 have been sued at least once, according to the AMA.”   “General surgery and OB/GYN physicians are most likely to be sued.  Nearly 70 percent of physicians surveyed in these specialties had been sued, and 50 percent of physicians in these specialties had been sued twice, according to the AMA report.”

It is a fantasy to think that that eliminating “bad” providers will eliminate malpractice. No provider is immune. In fact, almost every physician in a high risk specialty (such as 1.Ob-gyn, 2. General Surgery, 3. Neurosurgery, 4. Orthopedic Surgery, 5. Emergency Medicine) will be named in a lawsuit during their career.

It is important to remember that most statistics do not include the cases where multiple providers are named and subsequently dropped by the plaintiffs. That’s common, as plaintiff’s lawyers generally name everyone whose name appears anywhere they look. Yet, being named alone is more expensive, stressful, and potentially practice changing.

The depth of despair that such suits cause in providers is rarely revealed. Many consider it not unlike a “death in the family,” leading to depression, increased “defensive” medicine, and even leaving the profession. Defensive medicine occurs when patients begin to be seen as potential adversaries, and possible heartaches, instead of someone that needs help. Defensive medicine leads to excessive work-ups and tremendous costs. When the legal profession says that malpractice costs are reasonable, they do not factor in the billions of tests ordered just to cover all bases.

The “other side” is correct that recurrent offenders are infrequently sanctioned. Patients who were injured by “true” incompetence should be compensated, but bad outcomes are not necessarily the results of negligence. Sometimes, though it is not often brought out in litigation, the patient just had a bad disease.

When adding up the potential benefits of removing the malpractice hammer hanging over everybody’s head, the amount would be staggering. Critics would argue that states like Texas have made providers immune to most malpractice, but it takes years to end the paranoia of lawsuits.

Adopting a non-adversarial and non-lottery type malpractice system, across the board, would serve both patients and providers and cut the cost of medicine significantly. But when talking about this huge expense within medicine, it is quite like the elephant in the room that no one wants to admit is there (especially the lawyers).  But the smell is still obvious to everyone.

“Mama Don’t Let Your Babies Grow Up To Be Doctors”

This is Waylon Jennings' and Willie Nelson's 1978 cover of "Mamas, don't let your babies grow up to be cowboys". The song, originally performed by Ed Bruce, was number 1 on the charts for four weeks in the spring of 1978 and was released on the classic duet album "Waylon & Willie".

In the famous song by Willie Nelson and Waylon Jennings, they opine about the hardships of the “cowboy life”.

This song was Waylon Jennings' and Willie Nelson's 1978 cover of "Mamas, don't let your babies grow up to be cowboys". The song, originally performed by Ed Bruce, was number 1 on the charts for four weeks in the spring of 1978 and was released on the classic duet album "Waylon & Willie".

When asked the question of whether you would want your children or relatives to become physicians in the modern era, the answer is always “YES… but….”

Motivations for becoming a physician are multiple with multiple answers. They are generational in scope and multi-factorial. These include

1. Saving the world

2. Helping mankind

3. A means to an end.

4. Avoiding the draft and the Vietnam War

5. Family tradition

6. Economically motivated

7. Opening doors

8. Raising your social statue

9. Good at “School”

10. etc.

The modern day physician is caught in the trap of the “fantasy” of the good old days and ever-changing landscape. The physician is no longer the perceived expert of their domain but a valued cog in the big picture.

Patients still love their personal physician but want input in all aspects of their care. The paternal system of “I’m The Doctor” no longer works.

The physician is also trapped in the electronic world of endless data capture that is rarely relevant to the individual patient in front of them. Click 18 more boxes and you might get paid. 17 boxes and you get a 50% reduction. Did the patient get better? Who knows?

The modern day physician has become a corporate employee with little autonomy unless you are a dinosaur from the past and cling to your “perceived” freedom. Once you accept Medicare and Medicaid payments, you are indirectly/directly an employee of the government.

Getting back to whether you would recommend it as a career. I would do it over again because of the positives definitely outweigh the negative. Every 10-15 years medicine has been shaken up for financial reasons and everyone survived. The burdens are different but with the proper understanding that early acceptors of change are always the winners.

Where Does Telemedicine Fit In??

The authors of Telehealth Poised to Revolutionize Health-care review the present and potential trends in telemedicine.  ” Three trends, all linked, are currently shaping telehealth. The first is the transformation of the application of telehealth from increasing access to health care to providing convenience and eventually reducing cost. The second is the expansion of telehealth from addressing acute conditions to also addressing episodic and chronic conditions. The third is the migration of telehealth from hospitals and satellite clinics to the home and mobile devices.”

​​SMThe article does an excellent job of delineating the present and potential benefit of telemedicine.

 

These include:
1.    Availability for underserved areas
2.    Reduction in costs
3.    24 hour service
4.    Providing specialty support in real-time
5.    Real-time ICU coverage
6.    Real-time diagnostic imaging
7.    Clinical consultation on time sensitive dilemmas like acute stroke and emergency treatment
8.    Etc.

These services will continue to expand but eventually spread to ongoing chronic care. A good example is Diabetes Treatment. It has become so complicated with multiple new medications that the average provider may not have the ability or time to coordinate the care.
Another service will be online support groups for various conditions where the endless questions and concerns of patients can be addressed and supported.

The modern generation will want easy access to health care without the delay and time spent directly visiting a Emergency Department, Urgent Care, and or Primary Care.

Some downsides include:
1.    Over-consumption of care.
2.    Most illnesses or problems are solved with tincture of time.
3.    Not knowing when it is important to go right to the Emergency Department because of the potential seriousness of the condition.
4.    Getting care from numerous sources without coordination
5.    Almost totally giving up on the regular Family Provider who “knows you”.

There are also legal issues (future malpractice issues), credentialing issues, lack of access to high-speed internet, and the reality that the computer cannot perfor  m life-saving measures or surgery.
Where telehealth fits in with the primary care provider, urgent care, Walmart/CVS, Dr. Google (being your own provider) and the ultimate safety net –The Emergency Department –will have to be figured out.  

Should Physicians Join the Union???

With the Brexit vote in the United Kingdom, endless global conflicts, and the 50-50 political dichotomy in the USA, it may be time for providers (physicians, Nurse Practitioners, and Physician Assistants to organize into an effective voting force.

 

In the interesting blog Physicians must unionize.  Here’s why, the author recommends that physicians create a union to protect their interests from governments, health systems, and the endless prevailing forces that the individual has no control over.

I would suggest reading the article as maybe the time has come for physicians to get organized and protect their substantial interests.

 

​​SLXThese interests include autonomy, financial security, work conditions, and protecting the greatest guild ever created. Physicians have reaped the benefits since the 1960’s thanks to a fee for service model and Medicare guaranteeing a financial floor to generate exceptional incomes for 30-40 year careers. Along with social status and respect, it is a great job.

However, practice and personal satisfaction has significantly decreased in the last decade. More government mandates (usually unfunded), hospitals employing physicians, and the destruction of the personal doctor-patient relationship has been steadily on the rise.

Physicians are generally organized if at all by specialty societies with varied interests. This diminishes the overall power and clout of all physicians. Critics would argue that doctors are overpaid compared to the world market and are chief offenders at driving up costs.

A similar argument can made against the National Football League Players Association (NFLPA). It has been called a joke because it represents rich football players. The football players do make great sums of money but their careers last 3-5 years with lifetime physical disabilities to follow.  Physicians can earn significant amounts of money over 30-35 years without similar threat to life or limb.

 

The union could  represent the physician body in the ongoing financial negotiations with CMS, insurance companies and hospitals, work rules, malpractice, contracts, Electronic Health Record implementations, ICD -10 implementation, and etc.

The individual has lost any clout to fight these forces or influence the decision making. A physicians’ union would put the “players” back in the discussion. And yet, there may be ethical and practical considerations that might keep some from wanting to join a union.  For example, would you cross a picket line to help the bleeding patient on the sidewalk?  Most would say yes, despite getting roughed up or jettisoned from the union.  And then, how many times have you seen a hundred or more physicians in a meeting (think union meeting) that agree on anything?  Younger physicians steer clear of medical entities, such as the AMA, which has a pre-union character to it.  Perhaps they realize that the results of joining could include an early retirement a la Jimmy Hoffa.  Lots to think about before unionizing.

Can Defensive Medicine Decrease Lawsuits?

The authors of Physician spending and subsequent risk of malpractice claims: observational study try to determine whether increased clinical use of diagnostic resources serves to decrease malpractice claims. While they were able to show an association between greater physician spending and reduced risk of malpractice claims, they were unable to determine an underlying cause for increased resource use.
That is, the reason (cause) for this association is not entirely clear.  We can speculate, of course, but it is wise to remember that doing is simply that, speculation.  

 
Consider two possible causative explanations, one employing a defensive approach, and the other an offensive approach.  Opposite forces, same result. How?  In the first, physicians studied may actually have practiced defensive medicine, with the mindset of defending themselves from lawsuits. In the second, they have practiced offensive medicine, being more careful for the benefit of their patients, and being little influenced by defensiveness.   In either case the same association would have been shown: more tests, less suits.  Indeed, it could be the case that more careful doctors make more accurate diagnoses, and have fewer suits.  The only difference between these obverse sides (defensive/offensive) is motive.

From the defensive side, the authors give multiple reasons why malpractice occurs where some skill improvements might be of benefit, including poor interpersonal relationships and impaired communication abilities.  From the offensive side, when one is doing one’s best in behalf of a patient, there is little that can be done about unanticipated bad outcomes, unexpected diagnostic errors, cognitive errors, and systems errors. These happen to the best of us.

Nevertheless, defensive medicine is a fact of life for most physicians in the United States. It is present to some degree, even if slight, in most of us. It is the “Elephant in the Room.” Even though multiple studies contend that malpractice risk is overrated, those of us who have practiced for more than a few decades (or more) know that a multiplicity of factors get poured into each clinical decision, and no less into the question of what tests to run. While defensiveness may creep in now and then to some degree, it is not the whole picture, as it simply does not control clinician minds. Most of us make decisions based upon that we think will benefit the patient, not upon what will keep us out of court.  True, a good outcome is less likely to result in a suit, but we tend not to live in a pessimistic world where every patient is a lawsuit waiting to happen. Some believe that physicians do think that way, but it is an untrue picture because most practice optimistically.

Yes, there are those who have allowed defensiveness to rise to the top in their decision-making.  But not all in the house of medicine have done so.  No, not all, and more precisely, only few have defensiveness dominate.   Of course, for each of us, there have been times it has become more of a force than we would like, perhaps when under stress, or perhaps when the memory of encountering a plaintiff’s attorney is still fresh. But for the most part, we get back to practicing primarily for the sake of patients, letting potential litigation chips fall where they may. We do that largely because we know that lawsuit apprehension is not what really motivates us, nor what is best for our patients.

Unfortunately, a big part of the malpractice setting is the psychological and emotional damage a suit inflicts on defendants. Loss of money may happen; worse are losses of self-esteem, meaning, and identity. Then there are the potential appearances of alcohol abuse, substance abuse, and marital discord. These are only a few of the untoward consequences that accompany becoming a malpractice defendant.  There is also the chances one may lose their job or that potential advancement may be spoiled. The state of Florida has a 3-strike law that can actually force one to leave the state. We have been told that being referred to the State Department of Regulation can be a worse experience than being sued.

A provider who is currently, or was previously, a defendant must live with a cloud that follows him or her around, raining thoughts about the “mistake” that may have harmed someone. Whether fault really was present is often irrelevant when the defendant bears psychological consequence. Endless pressure to perform at 100% accuracy in a world where errors are not taken lightly, may, over time, extract a toll on the joy and satisfaction practicing medicine should otherwise have. One sometimes hears youths, as well as mature ones, say that medicine can be a great career, but there are easier ways to make money.

It is important to be cautious and, as we have noted, caution can lead to greater expenditure and resource utilization.  But, as we have noted, cautiousness may be directed not only toward oneself (defensively, by the ordering physician), but also toward the patient (offensively, to be sure nothing important is missed).  Now, when we, or one of our loved ones, becomes sick, don’t we want the cautious, caring physician, on the offensive in your corner, whether his ordering stats appear to be “defensive” or not?

Are there any solutions to this conundrum? Having a non-combative no-fault malpractice system (as in Australia) would be a good start. While a no-fault approach does not eliminate malpractice claims, it enables most injured patients to get their day in court without demonizing the provider.

Communication and system issues are prime sources of patient dissatisfaction. Still, because little can be done to reverse a bad outcome, a no-fault system has definite advantages.  It has the ability to provide resources for the patient and the family, while simultaneously protecting all concerned, including the physician.

In conclusion, it is only logical that providers might order more tests to protect themselves from all the downsides of lawsuits.  On the other hand, it is also only logical that physicians order tests in larger numbers to protect their patients from bad outcomes.  How do you tell these apart? These two paths to more testing are indistinguishable.  But in either case, even though the provider is being risk averse for two apparently different reasons, ordering more tests will not prevent lawsuits.

A Blast from the Past!

In December of 2012, we posted the Changing Paradigm for Outpatient Care blog.  Reading through Emergency Medicine News latest February 2015 magazine this afternoon, I found a blast from the past!  The Special Report: ED as Hub of Healthcare discusses why folks go to the emergency department for health-care.  Read both the article and the blog post below for some insight.  Enjoy!


December 3, 2012: The Changing Paradigm for Outpatient Care
The present model has the primary care physician as the provider and gatekeeper of patient care. They evaluate the patient, obtain consultation, admit to the hospital (the hospitalists have taken over this role), and are the general coordinators of care. However, this model in theory works well; it has proven to be ineffective. This is no criticism of the concept but the complexity of modern medicine has made this very difficult for the average family practice unit.

Current Model

The family physician is supposed be the “gatekeeper” of resources and keep people out of other venues like Emergency Departments and urgent cares.

The problem is that the general public has voted “with their feet” that they prefer the family doctor when they are well, but the Emergency Department when they perceive themselves to be quite ill and the urgent care for quick, convenient care.  Call any doctor’s office and the first non-human response is: “If this is an EMERGENCY call 911 or go to the nearest Emergency Department.”

At the present time Emergency Department Services comprise approximately 2% of the nation’s annual healthcare expenditures.

Almost every ED has the built-in infrastructure to accommodate large number of patients which could be expanded. These are centrally located in most communities and already are the de facto safety net of the United States.

Make the ED the central piece of an organized system of emergency department, urgent care, family physicians with an integrated use of consultants.

New Model

Advantages are:

• Lack of duplication of hard assets
• Patients already prefer the ED
• Coordination of care

Trying to Put the "Meaning" in Meaningful Use

High noon for federal health records program? 2015 will be a critical year for testing the system is an eye opening article.  Arthur Allen gives a critical analysis of the whole dilemma regarding the value of an Electronic Health Record (EHR) based on the present financial incentives.

The article explains the motivation of institutions to digitalize medical records, which primarily are two: money (potentially lost) and fear (of future penalties for not abiding by the complex rules the government has created).

Meaningful Use Objectives are defined in the chart below:

1. Improve quality, safety, efficiency, and reduce health disparities
2. Engage patients and family
3. Improve care coordination, population and public health
4. Maintain privacy and security of patient health information

Ultimately, it is hoped that meaningful use compliance will result in:

1. Better clinical outcomes
2. Improved population health outcomes
3. Increased transparency and efficiency
4. Empowered individuals
5. Robust research data on health systems

The intent of MU is good, but the reality is very different.  For one thing, "meaningful" depends on perspective.  That is, for a clinical user, meaningful is a different animal than it is for administrators, and for CMS, meaningful is a wholly different species.  Providers want usable data that supports direct patient care; they dislike having to capture endless streams of data for clinical irrelevancies.

So let's ask the following- since the bottom line is that everyone wants better care, what does a clinician find meaningful while providing that care:

1. Easy access to all relevant data in a recognizable format
2. Advisory alerts when appropriate
3. Clinical decision support
4. CPOE (computerized order entry system) that is universal and not totally provider driven- (Where have all the ward clerks gone?)
5. Insert your own here "xxx"

The government is looking for data to make political, cost, and cultural changes.  One unintended result is a new industry, a new unregulated "profession", medical scribe and that has certainly raised costs.  Along the same lines, CPOE has led to more tests, which equals more costs.

My suggestion is to read the article.  It does an excellent job of presenting the issues.  Ultimately, the solution is to create a national medical database that is easily accessible, secure, and agnostic as well as transparent to all EHRs, regardless of vendor or format.  With this database and a standardized CPOE, major benefits will be obtained.  Through the retrospect-o-scope, one sees that money could have been spent on this first; then the hospitals and providers would have clamored to be first to get an EHR that makes life easier.  As it is now, there is quite a mess to sort out with respect to interoperability and usability.