In Politico’s one year anniversary of the Obamacare roll-out, they asked for a bunch of very informed and interesting people plus even more hacks to give their thoughts on what’s next. Peter Orzag is one of the former and he makes a couple of very good points concerning care coordination and then an even better point about revising how we do medical malpractice:
My final recommendation is medical malpractice reform, which was unfortunately largely ignored in the ACA. The conventional academic wisdom is that malpractice laws don’t matter much, but that’s because most studies look at the question the wrong way. The right reform should not involve arbitrary caps on liability for doctors accused of malpractice, as Republicans have often proposed. Instead, we should alter the basis for finding a doctor liable for malpractice in the first place. If my doctor can show that she was following a best-practices protocol put forward by an accredited medical organization, I should not be able to sue her. That safe haven would help encourage evidence-based medicine while also giving doctors a way to minimize their exposure to malpractice suits.
There is a lot of low hanging quality improvements still lying around in the American health system. The mother of one of my daughter’s friends is a cardiac catherization nurse. Central lines (catheters that go in the arm and end up near the heart) had been a high probability of serious infection procedure until best practices were widely disseminated. Now central line hospital acquired infections have plummetted. These best practices are not complicated (better sanititation, better site selection and quicker removal of the line once it is no longer needed) nor do they require massive costs.
One of the medical directors at my company had a long line of academic research showing that the hand-off procedures between ambulances and ERs and then the ER to the long term wards was wildly variable in quality, quantity, format and compliance. Some hospitals had systems that everyone did but still confused the living shit out of all involved parties, while other hospitals had clear, logical, straightforward and useful protocals that weren’t followed. These differences had significant impact on mortality and length of stay. A new system of communication was drawn up with a variety of hospitals, nursing groups, ambulance and paramedics all giving input. Now throughout the region there is a standard form of communication with high data density, and high compliance that (in non-published/interim results) seems to have lowered both length of stay and mortality.
The Incidental Economist passed along a paper recently that showed ultrasounds as the first screening step for suspected kidney stones worked as well and was safer than CAT scans as the preliminary screening step. It also happens to be cheaper. However, this is not a universal practice for someone presenting suspected kidney stones.
The big problem that Orzag’s proposal would indirectly attack is that US medicine is still very much a folk art wrapped up in science. The same patient presenting the same exact set of symptoms and history to five different providers will get the same diagnosis but three or four seperate courses of actions. National standards as a safe harbor will start pushing standardization on proven and efficient methodologies. Doing that, in conjunction with Medicare paying less for high readmission rate hospitals and comparative effectiveness research, should lead to the US doing a bit less stupid things in medical practice, which means better outcomes and lower costs. It is not a panacea,
Baud
Is that different from the standard currently used for liability?
HinTN
That is one of the best explorations of our tortured medical system that I have ever read. Thank you for sharing.
Richard Mayhew
@Baud: As I understand it, most states use a “conforms to local standards of care” guideline. That local standard of care could be great or it could be a POS.
satby
@Richard Mayhew: And that the standard would be local, as opposed to industry best practices is pretty shocking.
dmsilev
Wasn’t there a push towards generating such standards in at least one version of the ACA? I distinctly remember some Republicans demagoguing the issue (“bureaucrats in Washington telling your doctor how to do his job”), but given the general level of connectivity between Republican blathering and reality, that doesn’t say very much.
satby
Have there been studies that show cost correlations between local practices (gotta pay for that new proton laser machine) and industry best practices? You mentioned the cardiac catheterization one reducing infections and the one about kidney stones, are there others that show best practices cut costs and reduce negative outcomes?
Baud
@Richard Mayhew:
Ok, so this proposal would increase liability. Not your conservative father’s version of tort reform.
Richard Mayhew
@Baud: It would also reduce uncertainty. Right now if a doc is trained in New York City and is trained to local standards of care and the moves to Baltimore, he needs to be retrained on local standards of care. If there is a conflict between NYC and Baltimore standards of care for a case, which one should he choose? The local one, or the one that s/he got trained on? Who knows? Only the jury if things go pear shaped. National standards of care advanced by NGOs would reduce that problem significantly.
Iowa Old Lady
Sometimes best practices are so simple that it’s shocking they’re not already followed. I heard a radio discussion of stroke treatment in which it was a new practice for the EMTs to call ahead to the hospital and say they had a probably stroke patient so the stroke team would be waiting for them in the ER.
Marc
Richard, what do you think of Orszag’s recommendation as medical malpractice reform? Is it a good idea? And is it workable?
Baud
@Richard Mayhew:
My understanding of the local standard of care is that it’s designed to benefit rural doctors.
Richard Mayhew
@Marc: Behind the veil of ignorance, I think it is an excellent idea as it should reduces errors which should reduce pay-outs which should make everyone happy (patients healthier, doctors richer). Since it would not directly defund a major Democratic donor class and it would be an improvement on Obamacare, I don’t see how it gets out of Committee in the House.
mai naem
There was that piece by Atul Gawande about “The Checklist” and how it reduced surgical complications. Also, I remember reading about a study in the UK by an ortho doc who made all medical personnel who dealt with her patients post-surgery, change into those cheap disposable gowns(not the hazmat suits.) I can’t remember the exact rate but her nosocomial infection rate went down by something like 80 percent. Apparently a lot of medical personnel don’t change their jackets everyday which I find disgusting.
Wag
@satby:
Medicare has data looking at regional variation in intensity of treatment for a huge variety of conditions along with outcome data. long and short is that if you go to a hospital in Florida you are much more likey to have unnecessary procedures and your outcome will be worse than if you were hospitalized in Minnesota
Highway Rob
@Richard Mayhew: There’s a base-level question that Orzag’s brief med-mal discussion doesn’t address, so I’m wondering if it’s well-known in wonk circles and I’m just not aware of it. How would national-level medical malpractice reform get around the fact that these lawsuits are brought under state law?
Also, what about an argument that published best practices risk stifling innovation? If you only get the safe harbor if you do what everyone already does, isn’t that a disincentive from finding a way to do it better? (This question comes from watching too many M*A*S*H episodes where the boys at the 4-0-7-7 had to work around army regs.)
Emily68
Here’s a New York Times story from 2012 about anesthesia during colonoscopies and how varies in different regions of the country. Some forms of anesthesia are expensive and some much less so and where you get your colonoscopy is a big factor in which kind of anesthesia you get.
http://well.blogs.nytimes.com/2012/05/28/waking-up-to-major-colonoscopy-bills/?_php=true&_type=blogs&module=Search&mabReward=relbias%3Ar%2C%7B%221%22%3A%22RI%3A8%22%7D&_r=0
Cervantes
Orszag.
And thanks.
Wag
@Wag:
Here’s a link to an article about regional variations in cardiac procedures.
Money quote
And here’s a link to the Dartmouth Atlas, a data bank of regional variation in medical care across the country,
dp
@Baud: No, it’s not. To recover for malpractice, a plaintiff must show a violation of the applicable, usually national, standard of care. A doctor’s showing that he or she complied with “best practices” is the basic equivalent of a showing that he or she complied with the standard of care. The only potential difference would be the formal promulgation of explicit standards for specific situtations, which would fit neatly within the current malpractice system.
dp
@Richard Mayhew: Local standards typically only apply to general practitioners, of whom few exist anymore. Specialists, including family practitioners, are typically held to a national standard.
The use of local standards developed at common law, but it has generally been replaced either jurisprudentially or through statutes.
The Other Bob
If the Republicans had wanted to put up a few votes for ACA I gotta believe they could have gotta some malpractice reform, even their shitty version of it.
Sterling
This rule would essentially outsource the legal system to an industry-run group. It’s a tempting idea if you think that an “accredited medical organization” is always unbiased and immune from corruption and incompetentcy. However, in the real world the moment you give a professional organization that much power, all the worst people rush in to take control of it.
Gene108
Orzag misses why Republicans want to limit damages in malpractice* lawsuits. In the end it is about expanding limited liability to other industries. Kid got sick because of contaminated food, tough luck the jury can only award you a pittance.
* I remember about 10 years ago that malpractice liability limitations was being trotted out by the Right as a major game changer in limiting medical inflation. I do not see them going on about it in the last few years.
Richard Mayhew
@Highway Rob: One of two ways — get a couple of big states to go this route (California, New York, Illinois for instance) so we get the reverse Texas textbook reaction OR go the Federal highway money route/Race to the Top where there is a massive pool of federal money available that is conditional on states changing their laws.
@Sterling: Then fund PCORI or CMS to develop these standards.
Sister Rail Gun of Warm Humanitarianism
@Sterling: In my (admittedly not medical) experience, best practices is an ever-changing thing, pulled this way and that by the latest in research, and formally updated every few years. The big problems I’ve seen with civil engineering standards is when the politicians get involved. Famously, when the NC legislature decreed that future sea level rise cannot be taken into account when permitting buildings.
It hasn’t stifled innovation among the innovators, and I sleep a lot better at night knowing that certain of my former colleagues have a standard checklist to work from.
Wag
@Sterling:
@Sister Rail Gun of Warm Humanitarianism:
The key word here is accredited. The organizations that are responsible for developing these guidelines are not Joe’s Bait House and Cardiac Catheterization Lab, LLC. These are organizations like the American College of Physicians or the American College of Cardiology that take years to evaluate the best available data, balance costs and benefits, and only then issue the guidelines for treatment.
And no, I don’t think that Rand Paul’s pretend Board of Ophthalmology would count in a Court of Law
Big R
@Richard Mayhew: There’s no need to engage in the back-door state law legislating you suggest (except politically). A federal statute enacting a best-practices safe harbor would preempt state law to the contrary.
rea
If my doctor can show that she was following a best-practices protocol put forward by an accredited medical organization, I should not be able to sue her
well, (1) either poorly stated or unworkable. You have to be able to sue your doctor to get a forum in which to litigate whether “she was following a best-practices protocol put forward by an accredited medical organization.”
And (2) based on a peculiar notion of what amounts to malpractice. “I followed the orthopaedic surgeons’ best practices protocol for carpal tunnel surgery, but oops! My hand slipped and I accidently severed the nerve.” Shouldn’t you be able to sue that doctor?
And (3) wtf “a best-practices protocol put forward by an accredited medical organization”? Medical organizations aren’t in the business of drafting “best practice protocols,” and if they were, this proposal would mean that they would be an exercise in cya. And of course, famously Dr. Rand Paul became unhappy with the American Board of Ophthalmology and helped to found his own National Board of Ophthalmology–who gets to write the protocols?
rea
@Big R: A federal statute enacting a best-practices safe harbor would preempt state law to the contrary.
Most doctors do not practice in “interstate commerce,” as that term is presently understood. Your proposal expands the commerce clause well beyond the fevered dreams of the most ardent New Dealer.
Belafon
@rea: So, how does Europe keep from having as many lawsuits as the US?
Xantar
@mai naem:
And one of the points of resistance faced by the Checklist is that doctors don’t like being told what to do, especially for something as simple as a pre-surgical procedure. They’ve been trained for years in this stuff, so they reasonably think that they have it down cold.
I imagine the airline industry faced the same problem when it first instituted pre-flight checklists.
MomSense
If we really want physicians to institute best practices, make them required for payment by insurance companies, Medicare and Medicaid.
Jose Padilla
Doctors won’t tolerate having the standard of care defined by a “best practices” protocol. They call it cookbook medicine.
Where there are written standards, it’s almost always the plaintiff’s attorney who wants to use them.
Eric U.
@Belafon: I think part of it is definitely that Europeans are less interested in suing if they knew there was a high probability of a bad outcome. Here there is often a lawsuit if there was a bad outcome, even if best practices were followed — particularly if the patient was otherwise young and healthy.
OTOH, when my wife went into private practice, her insurance company paid for training. One of the things they said was not to send a bill to collections, because that raises the probability of a malpractice suit. That is very widely ignored in the U.S., and it often seems like it happens a lot when there was a bad outcome.
Botsplainer
I’m not philosophically adverse to a sort of “loser pays” imposition, so long as it is mutual. There is a separate finding after the verdict as to whether the jury believes that the position that the loser of a trial of a matter was reasonable in terms of the maintenance of the claim or the defense once they hear the progression of rejected demands and offers and know the fee arrangements on each side.
That would go a long way toward uncluttering the bullshit.
Sister Rail Gun of Warm Humanitarianism
@rea:
File a suit, yes. I took Richard to mean that it would give a judge an opportunity for dismissing a suit.
Of course, all this is dancing around the lack of self-policing by the licensing board.
schrodinger's cat
Why do economists think that they can tell doctors how to practice medicine better, when they are so bad at predicting economic events all that well. Medicine, education and research are more than just cost cutting.
Sister Rail Gun of Warm Humanitarianism
@Eric U.:
IOW, malpractice suits as a way of getting rid of the bill collector. I wonder how much that affects the often-cited statistic that about five per cent of the doctors account for more than half of the malpractice in the US.
jibeaux
@rea: Agreed. This a tough proposal to enact on the federal level, even if Congress wanted it. But it’s a good idea for state reform anyway, in the whole “laboratory of the states” model and all.
JCJ
I do not know about other specialties, but in oncology there are guidelines issued by the National Comprehensive Cancer Network (NCCN.) These guidelines are set by medical specialists based on clinical studies. My approach is that if you are not following those guidelines you had better have a darn good reason. Not everything is covered by these guidelines, but they are an excellent resource.
bemused
Meanwhile, our health insurance through spouse’s job is going up again. Sigh.
Sterling
@Wag:
Doctors – even serious, well-educated, establishment, fully accredited and board-certified ones – are subject to the same institutional and financial biases as everyone else. You don’t put the same people who are in danger of being sued in charge of determining whether they should be sued. They’re going to tend to protect their own financial interests.
Courts are expected to be disinterested here for a reason. They don’t make more or less money in a year, or see their insurance rates rise and fall, depending on which standard of care is applied to a doctor’s actions. They may not be infallible, and some judges may be idiots, but on the whole the judicial system is unbiased in its approach to malpractice. That’s a good thing.
Ruckus
Seeing as how I use the VA I have some perspective on this. My care is different at the VA because they practice this type of process. Is it the best process? I don’t know but it does seem to cut down on the throw lab/test procedures(which many times the Dr. owns pieces of) at a person, thereby cutting costs. Their outcomes seem to be as good as the public area, even given that some clinics seem to not have been following guidelines and given some of the patients have more specialized issues than the general population.
A problem is that some VA clients don’t recognize that this type of care is different than what we normally see in our insurance/money medical system we currently have. It seems almost like a rigid set of rules that must be followed and that rubs some the wrong way. But if the rules are sound and followed the general outcomes will be good.
We throw money at the practice of medicine and people who follow a logical, scientific, encompassing process do get great results, but the results are inconsistent because not everyone does this. Some because they don’t know or care, some because they follow the lowest cost/highest profit mindset, some because maybe their local best practices are not up to date.
piratedan
well there also may be some “interpretation” to what is being used as local. Local could be reference to local environment issues, i.e. the folks in Kansas and Missouri may have a tornado injury protocol whereas Arizona most likely doesn’t have one. Could also be tied to the local flora and fauna issues, i..e. the Desert Southwest have kits for snakebites and scorpions whereas the Southeast could have protocols for poison ivy/oak exposures. It could very well be a ymmv kind of thing based on where you live and the types of illnesses and accidents that come with that specific turf.
Bobby Thomson
@rea:
You and the Five should probably read Wickard again.
Jim Filyaw
“…a best-practices protocol put forward by an accredited medical organization”
So a doc who sawed off the wrong leg or took out the wrong kidney can be insulated just because his procedure satisfied this sort of gobbley-gook. “hey, it looked like a kidney.” Two things. First, the victim of medical malpractice already faces a daunting challenge unless the deviation from the standard of care (the present threshold) damn near approaches gross negligence (jury verdicts for physicians run in the Soviet election returns range), and two, the amount of money involved in this area doesn’t amount to a hill of beans when the economics of medical care are considered as a whole. Finally, I’ve never heard one of these clowns explain why an incompetent physician should be anymore immune to his depredations than an incompetent lawyer or engineer.
Mike in NC
Does anybody really care what the morons at Politico think of ACA or anything else?
japa21
Richard, just a quick comment about something you said in the last paragraph about a patient going to 5 different providers would get the same diagnosis but different courses of treatment. That isn’t necessarily the case. Misdiagnosis is more common than perhaps realized, and that is soemthing that comes into the equation regarding malpractice:
■The American Journal of Medicine reported that at least 15% of all medical cases in developed countries are misdiagnosed.
■Even doctors are not immune to misdiagnosis: According to The New England Journal of Medicine, 35% of doctors have reported errors in their own care or that of a family member.
■A July 2012 BMJ [British Medical Journal] Quality & Safety paper found that of 5,863 autopsies studied, 28% had at least one misdiagnosis.
http://www.joepaduda.com/2014/09/its-diagnosis/
Joe Buck
Malpractice lawsuits are pretty much required in a country that has an inadequate social safety net. If a medical error has made it so that you can no longer work, how are you going to survive? Capping damages at $250K, as a number of states do, is a pittance if that $250K has to get you through the next 25 years and the lawyers get a third of it.
Mike Lamb
What happens if the doctor (unreasonably) misdiagnoses a given condition/injury, but then follows the proper protocol for that mistaken diagnosis?
cthulhu
@Eric U.:
A few years ago, I read about some organizations/hospitals taking a different tack toward potential malpractice. First, instead of stonewalling and protecting the staff at all costs, they were quicker to acknowledge errors and more important than anything else: apologize. And then work to correct what they could regarding the errors. The overall costs of settlements plummeted.
I think it is true that most people just want acknowledgement and justice regarding their claims, not necessarily a huge pay-out. But simply capping claims doesn’t solve the problem, it may very well make it worse by making the system seem more unfair (wait, my claim is capped to less than what one physician earns in a year – that’s the value of my lifetime of suffering or the loss of a loved one ?!!)
ericblair
@Xantar:
In the engineering world, I’ve heard it called CMMI level -1, aka “Everyone’s a Frickin Hero.” Combine this with widespread Illusory superiority and of course you’ve got endemic problems. I don’t think most doctors really think of themselves as part of a team with common processes and procedures, other than a being a team leader: a medical faculty is still a collection of egos with a common parking problem.
Someguy
So the doctor employs best practices, but then botches what he’s doing. No lawsuit.
Combine that with government-izing the medical system and sovereign immunity, and I think this is going to work out great for cost reduction. Sort of disincentivizes precautionary medicine while also disincentivizing ordinary care at the same time. But hey, no worries, the math works out.
Not so hot for patients, perhaps, but we’re about controlling costs and universalizing coverage here. Quality is job 3…
Roger Moore
@Joe Buck:
AFAIK, the malpractice damage caps are typically limited to non-economic damages, like pain and suffering. Economic damages- medical expenses, loss of income, etc.- are usually not capped.
Big R
@Bobby Thomson: Thanks for beating me to the punch. Also, the Necessary and Proper case involving civil detention of sex offenders, whose name escapes me at the moment.
ETA: United States v. Comstock!
JoyfulA
@Xantar: My doc said the hospital called a conference of its orthopedic surgeons to establish standard procedures for frequent surgeries.
He said the 14 orthos had 14 different proposals.
dmbeaster
Is there a medical malpractice lawsuit problem that allegedly needs fixing?
The proposed fix would seem to do almost nothing to the existing system. To win these cases requires a medical doctor to express the opinion that the procedures followed were below the standard of care. Maybe a set of practice standards would make it a little a less uncertain as to exactly what those are, but you ultimately still must have a medical professional indicating that someone violated the standard in order to recover. It still comes down to judgment calls except in the clearest cases, and it is hard to imagine a set of standards allegedly changing that process much.
As a lawyer with minor experience in this area, I would say that most medical malpractice goes unchecked, and that the incidence of questionable cases causing unfair results to doctors is rare. It is difficult and expensive to bring these cases, and they are almost always done on a contingency. Juries tend to favor the medical professionals. The real problem area is instances of bad medical behavior that causes “minor” damages — like around $50,000. Those cases typically don’t get prosecuted because the expense and risk doesn’t motivate the contingency lawyer. I have seen these cases, and the doctors and hospitals just shrug off their screw up. The arguably unfair cases to doctors are those involving catastrophic consequences with liability uncertain. The risk of a giant reward might cause an insurer to pay out on a weak claim.
Realize that it is the liability insurance system that is actually doing most of the regulation here.
Our system relies almost entirely on the threat of lawsuits to force compliance with proper standards. There is no meaningful self-regulation in this area, unless doctors being forced into more marginal areas of care can be considered “regulation” because better hospitals or practices will not deal with them due to their weak reputations. The bottom line is that they continue to practice despite a history of substandard care — just not as lucratively.
kc
That’s what the trial is for.
States have already made it more difficult to sue docs; in SC, plaintiffs have to jump through hoops just to file suit.
kc
No. It’s Republican bullshit.
kc
@kc:
I see EVERYONE beat me to it. I should have known. :)
jl
@Xantar:
” I imagine the airline industry faced the same problem when it first instituted pre-flight checklists. ”
Atul Gawande has a brief history of checklists in “The Checklist”, which says that pilot checklists started in WWII when new bombers became too complicated to fly reliably without them. Having a checklist was easiest way to fly a very complicated plane without regular episodes of crashed plane and dead pilot.
So, from what I read in that book, pilots never had to be sold on checklists.
There is so much uncertainty at the individual level in outcome in medical care and surgery, and doctor does not bear the consequences, so the standard US doctor who lives by the lone super hero model does not see the need.
Same goes for team and protocol based medical care, which docs from other countries tell me is much more accepted and prevalent in nations with a high quality healthcare system.
jl
Looks like FYWP ate my comment. No time to fix. The gist of etted comment was that US healthcare system looks pretty sloppy with lots of errors compared to other high income industrial countries. Only Australia close to being as bad, and sometimes with higher reported error rates.
So, I understand all the complicated concerns of doctors and lawyers, but why spend much effort at defending a relatively sloppy, high error system?
It can be fixed. France along with US used to have high rate of reported errors such as wrong Rx, misdiagnosis, botched procedures, etc. but fixed it. Why can the US not do the same?
Throwaway
@Richard Mayhew: Trial lawyers are a big donor class for the Democrats, and they will never allow any kind of limit on malpractice to go through. John Edwards, the darling of American liberals everywhere, literally built his career on finding children with cerebral palsy and telling their parents that the OB/GYN was to blame, leading to dozens of OB/GYNs becoming bankrupt from lawsuits and unable to practice. The science on which that was based was later proven shoddy, but John Edwards never apologized – why should he, he got his, who cares if he effed over dozens of medical professionals who only want the best for their patients. Then people are shocked when a guy like that cheats on his wife as she’s dying of cancer. Also, you can indirectly thank him for raising C-section rates in this country, as OB/GYNs everywhere said fuck this, I don’t have time for this shit, I’m just going to C-section any pregnancy I have the least amount of worry about because I don’t want to get sued by some piece of shit.
Finally, regarding this whole talk of local standards vs industry – medicine is very much an art, and it should be that way. Your kidney stone presentation is different from mine, and we’re both different from Cole. While it may be right to treat one surgically, another one may need medical therapy, another might need lithotripsy, so on. A hospital is not an Apple Store, and humans aren’t computers. If we reduce medicine to following protocols, the quality of care will drop.
Adam Lang
That sounds like a horrible idea. Malpractice suits are what cut the death rate from anesthesia by over 75%. Result? Malpractice insurance for anesthesiologists went from the most expensive to the second-to-least expensive, on average.
If they could have just said, ‘hey, we were just following the standards of care’, then such improvements would be made by a small group of white men who were medically trained in the 1950s. I.e. once a century.