Malpractice and Defensive Medicine

Here is where I complain about doctors being unreasonable, and not doing a better job for patients.

Unfortunately, doctors make mistakes.  Modern health care is complex, the treatments are more and more dangerous, and we are practicing  on older and sicker patients who all expect to cheat death until they are 100.

If you look at a the chart of a 90 year old patient, who spent the last 2 months of her life in the ICU (all too common these days), I can just about guarantee you will find that preventable mistakes were made.  It would be nice if no mistakes ever were made.  The reality is that 100,000 or more patients die each year in America, sooner than they should have, because of these mistakes.  We need to do better.

The threat of lawsuits haunts us doctors, and is a constant incentive to try and do better.  Lawyers deserve credit for keeping us on our toes.

The cost of legal defense for malpractice is really only about $2 billion yearly.  This is a drop in the health care cost bucket.  Doctors shout for Tort reform, but Tort reform has never been shown to lower health care costs in states where it is in effect.  It also makes adversaries of doctors and lawyers who both work for their respective patients and clients.

The real cost to the system, is the cost of defensive medicine.  These are the unnecessary tests and procedures physicians do, mostly, if not wholly, to be able to say we were very  thorough, should a bad outcome occur.  This is the result of juries, who take a very dim view of any doctor who didn't do everything possible to diagnose and treat an ailment, that went on to cause a bad outcome.  The same jury will acquit a doctor who over-treats a patient, leading to a serious complication.  This is the well known psychology of the jury, and even in this age of information, it greatly affects the practice of medicine.

The cost of treating and testing unnecessarily is huge.  Some would put it in the range of $200+ billion yearly.  Since tests are part of the Stuff that is the root cause of health care inflation, it needs to be tamed.  So how do we do this?

The reality is that most doctors follow certain standard of care protocols, but will do more than those protocols suggest frequently, because they will suffer the consequences if the protocol fails.  And it will fail very infrequently, but you don't want to be the doctor treating the patient when it does fail.

The solution is to make a deal with the lawyers.  Let's follow the very best data we have, for treatment of the presenting problem.  If the protocol says an expensive test isn't necessary, then it won't be done.  But if the outcome is bad, even though the protocol was followed, the doctor will be held harmless.

Now the lawyers will not like this.  But we can give them an even better offer, because the savings from not doing all of those tests, will result in a  giant pool of money, far greater than the $2 billion malpractice business which now exists.  In fact, you could create a hypothetical " bad outcomes pool" of $10-20 billion, which is 10x the typical amount of yearly malpractice costs, and still save 10x more than that because of all those tests that weren't done.  That's real money!

So take the $200 billion in savings on testing, and give $10-20 billion to the lawyers, and put them in charge of compensating patients and their families for bad outcomes.  After all, compensation for loss is tricky business, best  left to the lawyers.  It takes skill and expertise that certainly most doctors do not possess, and lawyers deserve fair compensation for such service.

The real win is for the consumer, because turning back all of that unnecessary testing should lower costs.  Also, it is a statistical fact that doctors will be delivering better care, with fewer bad outcomes.  And that will bear out over time.  Then we can focus on improving the process to continue to reduce the bad outcomes.  Everybody wins right?  Well sort of.

So who will lose under this scheme?  Of course it is the makers of the Stuff.  And they will do their very best to make sure such a sensible alliance between doctors  and lawyers for the public good, never happens.  You can bank on that.