Lawsuits Create Defensive Medicine
Los Angeles Times
July 25, 2001
Commentary
by William W. Thomas, Chairman of the House Ways and Means Committee
"Let's pause for a moment in the debate over a patients' bill of rights and go back to the basic premise of health care. It's about helping people. It's about getting the best medical treatment. It's about you and your doctor making decisions that affect your health, your family and your life. It's not about a lawyer making those decisions."
Comment: It is rare for me to agree with the man that would privatize Medicare, and to disagree with our great allies in the cause for health care justice for all. But we should pause and reflect on Rep. Thomas' words.
Most patients that suffer medical injury do not sue and are not compensated for their losses. Most patients that do sue are not victims of malpractice but have suffered a medical maloccurance that is not the result of error in judgment but is merely an unfortunate, fortuitous outcome. The medical tort system is an extremely ineffective system, yet about 10 billion dollars per year are diverted from patient care into this system. Much of this is consumed by the plaintiff's attorneys, defense attorneys, malpractice insurance companies, investigators, and court costs, not to mention the additional waste of unnecessary "defensive medicine." Of the remaining portion that reaches the plaintiffs, a relatively insignificant amount is used to obtain medical care. That 10 billion dollars would be better spent on beneficent programs such as meeting the needs of the uninsured or providing prescription drug coverage for Medicare beneficiaries. Instead, under the cloak of a "patients' bill of rights," Congress continues to debate the expansion of a tort system designed to divert even more funds to this wasteful legal industry. These comments will be challenged by our friends and colleagues on the basis that we need "accountability," but what we really need is an expedited appeals process to gain access to needed care.
Tragically, this ridiculous debate has diverted our national leaders away from the real problems in health care. We desperately need to provide coverage for everyone, and we need to assure that our resources are provided exclusively for the benefit of patients. We can do this best through a publicly administered, universal health insurance program. Let's start the real debate - now!
<http://www.latimes.com/news/opinion/commentary/la-000060494jul25.story?coll=la%2Dnews%2Dcomment>http://www.latimes.com/news/opinion/commentary/la-000060494jul25.story?coll=la%2Dnews%2Dcomment
Kip Sullivan responds to the quote of Rep. William Thomas and to my comment:
Don,
I agree with portions of your commentary, but I disagree with your characterization of the malpractice that occurs in this country as "a medical maloccurrence that is not the result of error in judgment but is merely an unfortunate, fortuitous outcome."
You are usually a very crisp and precise writer, but the quoted phrase is mushy and, to the extent that I can understand it, wrong. Your phrasing suggests that malpractice is nonexistent (your invented word "maloccurrence" strikes me as almost Orwellian), or, if malpractice is real, it's like gravity -- there's nothing we can do about it and, therefore, there's no point in debating why it happens.
I offer a different point of view. Malpractice is real, some of it is due to system failure, some of it is due to the failings of individuals, and both types of failings are less likely to happen if individuals and systems know they could lose money and reputations in a law suit.
I agree completely with you that the existing malpractice system is highly imperfect. Too many people who shouldn't sue do, too many who should sue do not, and the overhead costs of the system are very high. But we currently have no other system that can deter malpractice, whether by individuals, hospitals, HMOs or any other system.
Overwhelming evidence exists indicating that a substantial portion of adverse outcomes in medicine are the result of malpractice, which the law defines to be the provision of services, or the failure to provide services, that violates a widely recognized standard of care due to negligence of the doc or other provider. (For the sake of simplicity, I'm leaving out a few other elements of the definition of malpractice.) It's true that a substantial body of evidence indicates that many (but not all) of the acts of malpractice should be blamed on the systems in which health care professionals work. I include managed care insurers in my definitions of "systems," something the Institute of Medicine seems incapable of recognizing. According to the IOH, "quality is the problem, not managed care."
But not all plane crashes are due to system failures --some are caused by errors of judgment by individual pilots -- and, similarly, not all medical malpractice can be blamed on the system.
Regardless of where blame should ultimately lie for a given adverse outcome -- on the individual, several individuals, or a system --the threat of a lawsuit will have a deterrent effect on at least some types of negligence. We're already seeing proof of this axiom in the announcements by several HMOs that they are going to back away from utilization review. The plans doing this are claiming they are dropping UR because it wasn't cost effective, but the timing of these announcements robs them of their credibility. UR has been around for three decades. That's plenty of time for the plans to figure out that UR wasn't cost effective. It is the threat of class action suits filed in recent years, and the possibility of many more if the right to sue HMOs is established by Congress, that has caused some HMOs to back off of UR.
Even after we get a universal health insurance system, malpractice will remain a problem. The public needs to discuss both issues --malpractice and universal coverage. They are separate problems.
I just wrote a piece for In These Times asking the question, Is the patient protection debate a waste of time? I don't think it is. I'll email it to you if you'd like to see it.
Keep up your great work.
Kip
Kip's excellent article, "Patients Losing Patience," from In These Times, August 20, 2001, is available at: <http://www.inthesetimes.com/web2519/sullivan2519.html>http://www.inthesetimes.com/web2519/sullivan2519.html
Victor Sidel, M.D., Distinguished University Professor of Social Medicine at Albert Einstein College of Medicine of Yeshiva University, responds to the quote of Rep. William Thomas and to my comment:
Dear Don:
I not only "rarely disagree" with you, but I believe this is the first time I have ever disagreed with you.
I believe you give Thomas too much credit. Of course, lawyers should not be making medical decisions. (Doctors shouldn't be making most medical decisions either, except in rare circumstances, but that's a different topic.) But when managed care or other forms of medical care organization deny needed care to patients, under current conditions in the United States lawsuits are often the only channel for redress. Is that an effective, just, or equitable method for oversight of the U.S.medical care system? Of course not. Does it lead to "defensive medicine"? Of course it does. But until the United States arrives at what we both view as the needed high quality, publicly administered, universal health care system with an expedited appeals process, the tort system may be the only way to force the industry to provide needed care. Is it a diversion? Of course it is. But is it a necessary stopgap while the needed system change is attained? It may be. Tort law has certainly been misused in many instances, but defenders of the environment and of civil rights would be weaker without it.
Thomas opposes the patients' rights bill that includes strengthening tort law methods as one of its provisions because he seeks to prevent needed system change and he views opposition to that bill as a tactic for his purpose. The remainder of his opinion piece makes his tactic clear. He should not be praised for that tactic.
Warmly, Vic