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Physicians are very independent minded and therefore find it hard to unite.
Politicians are unable to bring about any meaningful healthcare reform because there are SEVEN lobbies against it.
With a million-book-march to Washington we can create a people’s lobby which will be heavier than the weight of all other lobbies combined. This will educate the politicians and give them strength and courage to stand up to the lobbyists and do the right thing.
The very high and ever-increasing cost of healthcare in the U.S. is due to excessive utilization, excessive profits and ‘maladjusted capitalism’.
Excessive utilization is related to many factors, but the most significant one is the fear of litigation. This, in my opinion, is the biggest driver of healthcare costs. It alone accounts for ten percent of healthcare expenditure through the practice of defensive medicine, and reforming it will not only save this cost, it will also improve the quality of medicine and patient care.
How did medical liability system become so entrenched in American medicine?
Why is it so difficult to reform?
To answer these questions, and give readers a taste of the book I have borrowed a few pages (136 thru 144) from chapter five – The Argument. They are presented below:
Fear of law suits is the single most important reason that doctors order too many tests and perform many diagnostic procedures. Both add to the cost of health care without improving its quality. Other factors which lead to excessive utilization of healthcare services include patients’ and families’ demands and physicians’ willingness to go along to keep them happy and avoid any potential lawsuits. Liability insurance premiums are a significant part of physicians’ overhead and help the legal and insurance industries more than the patients or the doctors. It is possible that this extra overhead puts extra pressure on physicians to generate extra income and somehow justify more frequent use of non-invasive procedures in their practice. Directly or indirectly, the medical liability system in its present form has a negative effect on healthcare cost and its quality. In my estimation it increases the cost by at least 10%. It fails 100% in its purported purpose of saving patients from injury due to medical errors. After such an injury has occurred, it again fails miserably in getting a timely resolution and fair compensation for the injured. Even when the claim is real and legitimate, it takes a long and convoluted process of litigation, which may go on for years, along with the anxieties and uncertainties inherent in such cases. In the end, the injured patient and/or family may receive some relief and compensation, but the attorneys and law firms representing either side make lots of money in the process. And who is paying for all this? The physician. Yes, the same physician who orders a lot of tests to be protected from litigation is also being forced to perform even more tests and procedures, if possible, to make a living and yet be able to pay for these expenses. If I were to pick one single aspect of healthcare which uniquely differentiates United States from the rest of the world, it is the medical liability system. Just as uniquely, it greatly increases the cost of health care in this country. Will the frequency of medical errors go up if medical liability system as it exists today is altogether abolished? NO, definitely NO. In fact, for a fraction of the current cost of liability insurance premiums, doctors, nurses, pharmacists, hospital administrators, and others involved in the delivery of health care can develop systems and protocols which will minimize the occurrence of medical errors.
Continuing medical education (CME) courses in this area will be a lot more beneficial than the CME courses on how to avoid litigation. The former will help the safety of the patients and give relief to the doctors. The latter have been going on for a long time. They give a false sense of security to the doctors, do nothing for the safety of the patients, and provide more power and income to the lawyers. Why has the U.S. medical liability system existed for so long without making some useful and positive changes which will better serve the patients, doctors and public in general? Because it was never meant to do that. Unlike the liability insurance that is required by law for an automobile driver, there is no law—state or federal—which mandates a doctor to buy liability insurance in order to practice medicine. Years ago it was only hospitals which mandated physicians applying for hospital privileges to buy liability insurance. They did this primarily to protect themselves and not the patients. If a doctor makes a mistake, why should the hospital pay for it when doctor is not even an employee and gets no salary from the hospital? Makes perfect sense doesn’t it? What was needed was to convince the lawyers to not punish the hospitals if it was doctor’s mistake which caused the injury and vice versa. To dissuade the lawyers from going after deep pockets would be most difficult. To require doctors to buy and maintain a minimum level of medical liability insurance in order to obtain and maintain hospital admitting privileges was easy. I suspect this must have played some role in the minds of those who originally formulated and wrote hospital medical staff bylaws. Many of them might have been lawyers themselves. To protect from the effects of joint and several liability, it made sense for the hospitals to mandate medical liability insurance from the medical staff. It has been a universal part of medical staff bylaws for U.S. hospitals and has served the legal community well.
The limits of coverage required used to be $100,000/$300,000 which meant a maximum compensation of $100,000 per claim and $300,000 per year. Thanks to higher jury awards over the years, most hospitals have been requiring limits of $1,000,000/$3,000,000 for many years now. In the past, physicians who wanted to practice only in the office and not admit any patients in the hospital they did not have to buy any liability insurance if that is what they chose. Now every health insurance plan and health maintenance organization (HMO) requires it as a prerequisite to join the plan. The underlying philosophy is the same as in the case of hospitals—to protect themselves from potential litigation and its consequences. They practice this to the point of abuse and exploitation. For therapies that they deny their insured members or the restrictions they pose on physicians or hospitals, they do not want to take any responsibility whatsoever. They do not mind paying lawyers very large fees to make sure that all contracts will have the same language, clauses, or footnotes which will provide them full legal protection under every conceivable circumstance. Neither the physicians nor their insured members have the time or the legal expertise to study or understand these contracts. When a claim for medical services which have been rendered is denied, all that a physician can do is to either go through the most frustrating experience of making a few phone calls and after prolonged visit and conversation with a few machines, he may eventually speak to a human being who would have been just as vehemently programmed to deny the claim as the machines he has been using. Or the physician may decide to write a letter of appeal to review the insurance claim which has been denied. The outcome will in all likelihood be the same. He will receive a letter in block letters without any signature, emphatically denying the claim along with the excuse and its legal or contractual basis. What happens to the medical bill? Now the insured member who has been paying his/her premiums directly or through the employer tries his luck and makes a few phone calls to the customer service of his/her HMO or health insurance plan. The outcome remains the same. So, on one hand an HMO finds a way to deny a legitimate insurance claim from a physician, and on the other requires the physician to maintain medical liability insurance coverage of $1,000,000/$3,000,000, which puts pressure on the physician to order and perform more tests and procedures. There is something contradictory here. HMOs would prefer physicians to undertreat rather than overtreat so that the HMOs can pay less and keep more money. But they insist on physicians buying expensive liability insurance, because they are fearful of lawyers like the hospitals are. They want to save their skin and yet shift the liability to physicians as much as possible. And who is helping them to do all this? The lawyers! Who else?; the same lawyers who help them write contracts with all the loopholes and legal protections. The legal industry has always held a position of power and influence in America, and when it comes to market forces and capitalism, this position becomes even more powerful. HMOs and health insurance plans have just as much or even more love for power and money. Thus the medical liability insurance system, although on the face appearing to protect the interests of the patients and their families, in reality largely serves the interests of legal industry and provides protection to HMOs and health insurance plans largely at the expense of physicians. Hospitals dilute their risk by mandating physicians to maintain coverage at higher limits. A brief review of the history of medical liability system will provide some more insights.
Sir William Blackstone in his famous Commentaries on the laws of England in 1768 described “mala praxis” as injuries caused to a patient by neglect or mismanagement of his condition by his treating physician. The modern word “malpractice” is derived from “mala praxis” and pretty much fits the original definition. Blackstone’s commentaries have played a significant role in the development of American law. In early 19th century, the practice of medicine was not organized as a profession, and any one who claimed to have gained knowledge from any source including one’s grandmother, could treat ailments. If things went wrong, God was considered responsible for the bad outcome, and the self- proclaimed healer was forgiven. Around 1840 things suddenly changed, and during the next 10 years the practice of medical malpractice became almost as firmly established as we see it today. A cultural and attitudinal shift was taking place slowly during the second and third decades of 19th century. Medical science and its practices were developing as a respectable profession, and its practitioners with newly gained legitimate knowledge were trying to gain recognition as true professionals. They naturally considered themselves superior to quacks and all other self proclaimed healers. In 1820s and 1830s Americans were also becoming more aware of the role of good food, nutrition, and physical fitness in improving their health. Advances in medical knowledge and its advertisement by physicians helped raise people’s expectations. Instead of blaming God, now they were blaming doctors for bad outcomes. Lawyers saw a great opportunity. Up until the early 19th century, contingency fee arrangements were prohibited and considered champertous. Champerty was defined as taking a financial stake in someone else’s litigation, and was considered unethical. The concept had come from England and was respected and practiced as a matter of law in the U.S. also. The Field Code which was adopted by the New York legislature in 1848 established the concept of freedom of contract between attorney and client, allowing them to enter into agreed upon fee arrangements. Other states gradually followed, and lawyers started taking many more cases, especially ones in which patients were not happy with the outcome.
A typical example would be a compound fracture. Deformity of limb, shortening, or persistent infection used to be accepted as a normal outcome when healers of all kinds, including doctors, were managing these cases. In the mid-19th century, orthopedic surgeons were establishing themselves as experts in the field. Bad outcomes after their treatment were not acceptable by either patients or lawyers. Even a poor patient who could not afford to pay the lawyer now could easily engage one on a contingency fee basis. The American Medical Association (AMA) came into existence in 1847 and started working diligently on developing educational and professional standards for physicians and the practice of medicine. It also helped and persuaded state legislatures to start licensing physicians if they met those standards. This gave licensed physicians their rightful professional status and helped them gradually acquire more and more of the market share of the business of the healing arts. At the same time it raised expectations in the minds of the public receiving treatment from licensed physicians. Attorneys welcomed these developments. It did not make any sense for them or their clients to go after marginal healers whose average net worth was much lower than that of physicians. Medical journals in the mid-19th century and thereafter reported increasing frequency of medical malpractice law suits. Many physicians felt malpractice attorneys following them like sharks. As medical science advanced and incorporated new therapies and new technologies, it offered new hope to the doctors and their patients alike. It also offered the potential for failure at least in the early stages of incorporating new technologies and provided fodder to attorneys for potential lawsuits. Contingency fee arrangements were supposed to help the poor and allow them their day in the court, but lawyers agreed to take only those cases in which they saw an easy victory and a large financial award, regardless of occurrence or gravity of medical mistake. Trial by a jury of one’s peers is the hallmark of the American legal system. But how on earth does a layperson on a jury suddenly become my peer in a medical liability case?
Medical education takes the longest of any professional preparation and requires many more years of training even after one graduates from medical school. Having worked for over 30 years in the field of thoracic surgery, I personally find it hard to fully understand the problems that my colleagues deal with in their own fields. For example, when a neurosurgeon places a catheter in someone’s brain to relieve the pressure, I would find it hard to make a definite opinion and pass judgment in case of a complication. He would have the same difficulty if I punctured someone’s heart while trying to remove fluid from around the heart with a blind needle stick. But after proper study of the circumstances causing the complication, both he and I could be able to make a truthful and accurate judgment as to what went wrong. We should also be able to decide whether negligence or omission played any role in causing the complication because we have the benefit of medical knowledge and years of experience. In spite of all this there will be situations where only physicians of the same specialty and similar experience will be able to make a real assessment.
Aside from the jury, the lawyers and judges as well, with due regard to them, are laypersons when it comes to serious and complicated medical problems. In the mid-19th century when medical malpractice lawsuits were becoming quite common, physicians recognized this fact and tried hard for the use of special panels to work as expert juries in deciding medical malpractice cases. The courts and attorneys, however, saw this as a threat to their power. In the third decade of the 19th century, U.S. law was moving in the direction of the adversarial system, which became fully established in the 1840s. Trial by a jury of ordinary citizens became the rule of the land and has remained so ever since. This has greatly helped the attorneys. With their skillful and crafty way of throwing questions and cross questions at witnesses, they are able to play with the minds of the jurors. Attorneys’ sense of justice is not necessarily to establish the truth. It is primarily to make lots of money and to try to win the case. It would be fair to assume that truth would have a fifty-fifty statistical chance, and so would justice—not a comfortable feeling for the doctor who might be innocent or the patient who might have been harmed. But that is how the system works, because it is the will of the attorneys, and it has served them well for nearly 175 years. From 1840 onward, medical malpractice lawsuits increased in frequency because they provided an easy source of income to attorneys and their clients. Many of these were not genuine at all, just like today. But it did not matter then, nor does it now—as far as attorneys are concerned.
Doctors were facing increasing prospects of personal bankruptcy in the second half of the 19th century. The only solution they could come up with was to share the risk among themselves. Medical liability insurance was thus born toward the end the century, and it became a bonanza, again, for the lawyers. Now they could even sue doctors with minimal net worth and still make a lot of money. This also guaranteed the perpetuation of the system into the future, and time has proven that professional services rendered by physicians have never been based on any sort of contractual agreement between them and their patients. For a bad outcome it has always remained an open question as to what amount of blame should be assigned to the physician and how much money will be a just compensation. Lay juries with little knowledge of medical science have been deciding on these cases issuing large awards. This boosts the pockets of attorneys and gratifies jurors, whose natural sympathies for the innocent victim of alleged malpractice, become heightened by the emotional drama and impressive acting by the trial lawyers.
High malpractice insurance premiums are a big price which physicians pay, but there is a much bigger price, which society pays. As a result of excessive testing, work up, and other procedures ordered or performed by the physicians to hopefully protect their skins from the trial lawyers, the health care cost goes up by nearly 10% in my estimation. This in 2006 dollars comes to about 200 billion—a huge sum of money. If attorneys could see the amount of harm they have been inflicting on society for over a century, they themselves might realize that even in a free system of capitalism and market economy, the welfare of the larger society must outweigh their own. Legal scholars with deep thought and retired attorneys who have made all the money they ever wanted may want to study this problem and try to bring about some useful changes. The other way to fix this problem would be the legal way, which every attorney is familiar with and feels excited about---If we could get a group of smart and experienced lawyers who would be willing to start a class action on behalf of the people against the trial lawyers directly or indirectly responsible for increasing the national healthcare expense of about $200 billion in 2006. Add punitive damages to that, the claim could easily top a trillion dollars. With 30% of that as contingency fee, they must be drooling. Even after discounts for professional courtesy, if there is any in their line of work, the legal fees would perhaps be the largest ever. Go for it. The time is right, and this will fix most of the ills associated with healthcare costs.
The doctors should be able to take care of other problems. They will only need a gentle reminder from themselves and their peers to practice good medicine and make it cost effective without compromising patients’ welfare. Given the responsibility, doctors are fully capable of developing systems which will minimize medical errors and hold physicians fully accountable for mistakes which could have and should have been avoided. Such mistakes will be exposed more often and appropriate measures taken to prevent them in the future. Fair compensation to the patients who suffer injury from such mistakes can be made in a timely manner without causing further pain and anxiety involved in the lengthy and unpredictable process of litigation. All this should cost no more than one-third to one-half of the present cost of medical liability insurance. But the real savings will come from shifting the gear of health care engine one notch down. This will happen slowly but surely, as physicians start practicing cost effective medicine and feel secure with time that they will not be unnecessarily hassled or punished by ruthless lawyers.
These pages must convince the reader that a meaningful healthcare reform, which will make healthcare affordable for everyone and bring overall cost down, is not possible without a meaningful tort reform. This, and much more is given in the book in a comprehensive manner. Washington politicians will listen and do the right thing if they receive a powerful, cohesive and coherent message from the people. We the people must provide that, and the book is the message. Hence the need for “Operation: Save Healthcare Save America -with a million book march to Washington”. A full and vigorous participation by everyone is needed for a successful outcome.