Over the past week or so, National Review‘s Avik Roy has kicked off a bit of a blogospheric firestorm with his posts on a journal article published in the latest edition of the Annals of Surgery entitled “Primary Payer Status Affects Mortality for Major Surgical Operations.” The article analyzes the surgical outcomes of 839, 658 patients who had surgeries between 2003 and 2007, in terms of what type of health insurance, if any, the patients had. The study’s authors conclude that patients with Medicaid or who were uninsured fared more poorly in their outcomes than patients with private insurance.
Some blog posts have erroneously suggested that the article concludes that patients with Medicaid actually had worse outcomes than the uninsured, but that is not the case. Medicaid patients fared worse than the uninsured in one limited category – in-hospital mortality (deaths occurring during the hospital stay). Overall, patients with private insurance had a the lowest mortality rate. Their mortality rates were nearly half of those with Medicaid and the uninsured. (The overall mortality rates of the uninsured were 0.5% higher than those with Medicaid).
There are many reasons that we would expect Medicaid patients or the uninsured to fare worse than patients with private insurance. Patients on Medicaid or without any insurance are likely to be poorer than patients with private insurance and being poor means you’re more likely to suffer from a wide range of health problems from hypertension to diabetes. So the poorer health of Medicaid patients and the uninsured prior to their surgeries is one explanation that we have to take account of.
But so too are differences in the surgical talent performing the surgeries and the rates at which doctors are compensated in performing private insurance, Medicaid and uninsured surgeries. Medicare reimburses doctors at only a fraction of the rate of private insurance and Medicaid reimburses doctors only three-quarters of Medicare’s already discounted rates. Because of these low rates of reimbursement, a growing number of the most sought-after doctors are turning away patients with Medicaid.
Due to a vacation that I took and assorted demands of my practice, I haven’t blogged much this month. Bereft of ideas after being out-of-contact with the blogosphere over my vacation, I decided to cast about my favorite legal blogs for inspiration. You can imagine my surprise when, upon clicking on my first bookmark – Eric Turkewitz‘s New York Personal Injury Law Blog – the first post I saw was a post about me (in part)!
It was a surreal moment worthy of the movie Inception (which I saw on vacation), a bit like opening your newspaper and the first story you read mentions you.
Eric’s post made me want to reiterate two points. First, I am grateful for the links that my blawg has received, especially from some of the preeminent law blogs like Eric’s and Point of Law and Overlawyered. Eric’s post was about the open-mindedness of Walter Olson in linking to sites (like mine) that are critical of the tort reform movement.
What struck me as remarkable – in addition to Olson’s open-mindedness – is how open people like Eric and Olson and Ted Frank are to blogging newcomers. Olson is the godfather of legal bloggers; his blog Overlawyered is, without dispute, the first legal blog, dating back to 1999. Eric’s New York Personal Injury Law Blog is one of the most-read law blogs in the country. One might imagine that, sitting atop the legal blogosphere, people like Eric and Walter and Ted Frank, might believe in a pecking order based on a system of seniority. However, the sole criterion they seem to rely on in their references to other blogs is whether a post is “linkworthy.” I appreciate that fact.
Secondly, although I’ve sometimes thrown some sharp elbows in the direction of Olson or Ted Frank or their blogs, I do respect a lot of the work they do. Olson has drawn a lot of attention to our broken copyright system. Olson and Cato have also drawn a lot of attention to the problem of “overcriminalization” – the phenomenon of broadly-worded federal criminal statutes that criminalize conduct that no one would suspect is criminal. Frank has done great work in addressing some of the agency problems inherent in consumer class action litigation.
When I agree with Olson or Ted Frank, I rarely blog about it because most often the topic does not fall within the subject matter of this blog – personal injury law. For example, a couple of weeks ago, Ted Frank had some praise for an op-ed about how our tax laws have created an American aristocracy that can transfer wealth from generation to generation. Frank’s sentiments are as American as apple pie and go back as far as de Tocqueville. A couple of months ago, I recall reading with disgust this story about Dan L. Duncan, who may have been the first American billionaire to pass his fortune to his children entirely tax-free.
And when Ted Frank blogs about how all lawyers should be using RECAP so that the public has better access to legal information, I don’t post applauding the idea (even though I am a long-time user and believer in RECAP).
Where I disagree with Olson and Frank is the emphasis they place on tort reform. To my mind, our tort system runs well, and if I were going to set out a program of legal reform it would be focused in fields like intellectual property law, criminal law and immigration law. But I am glad that people on both sides of this debate – whether tort reformer or trial lawyer – are interested in a genuine conversation and not just inhabiting an echo chamber.
In March, I blogged about this $1.5 million jury verdict against saw manufacturer Ryobi for failing to equip its table saws with some form of flesh detection technology, such as that offered in SawStop-brand saws. This video illustrates the SawStop technology that’s been wowing contractors and other tradesmen over the last decade or so:
For more about SawStop, and the power saw industry’s refusal to license the patented technology for its own power saws, check out the stories here, here, and here.
To date, SawStop technology is credited with hundreds of “finger saves” – instances where the technology saved table saw operators from losing fingers.
PS – If you’re wondering how SawStop works, it relies on electrical conductivity. It’s the same principle that you see at work in those old “touch lamps” that would turn off and on whenever your hand came in contact with their base.
It’s probably this blog’s favorite topic: the way – or at least one important way – of reducing medical malpractice is for doctors to implement the same kind of systems we see in aviation.
Dr. Gawande has written a book on the subject – The Checklist Manifesto: How To Get Things Right. The central thesis of Dr. Gawande’s book is that the way to prevent medical errors is not to create more intense or longer training for doctors – it’s to make sure that protocols get followed by adhering to standardized checklists, the same solution for reducing error that the aviation industry hit upon in the 1930s when their aircraft started becoming more complex. Dr. Gawande’s checklists, which have been deployed in a WHO pilot study, appear to be wonderfully successful.
This blog has suggested that one reason checklists have proven so effective in reducing the incidence of medical malpractice is that they put everyone on a level playing field – nurses and doctors, high rank and low – and allow anyone who catches a mistake being made to speak up about it.
Last week, Slate.com profiled another doctor – James Bagian, director of the Veteran’s Association National Center for Public Safety – who is urging his colleagues to use the aviation industry’s approach to reducing error. Dr. Bagian, like Dr. Gawande, is a man of many parts: prior to becoming the VA’s chief of patient safety, Bagian was a NASA astronaut, an Air Force-qualified free fall parachutist and a mountain rescue instructor.
Bagian notes that the health care industry devotes a much smaller percentage of its expenditures to reducing human error than so-called “high reliability” industries, such as aviation and the chemical industry, industries that deal with very high-risk enterprises but very seldom have serious incidents.
Bagian believes that the problem with medicine is a “cultural one” and he attributes it to medicine’s being so old – healers go back to Hippocrates – rather than its being a youthful field like aviation or chemical engineering that is more informed by the trial-and-error values of the scientific revolution.
But – and here is where the tort reformers probably start to shriek in horror – maybe serious error is less common in aviation and in the chemical industry than in medicine because the legal system holds those industries to a very exacting liability standards. Airlines and other forms of mass transportation are referred in legal parlance as “common carriers.” Common carriers are notable for one thing in tort law: they owe an extraordinarily high duty of care to their passengers. So, if a plane crashes, the airline is very likely to be found liable, even if the mistake was hard to avoid. Likewise, the chemical manufacturing industry is one that engages in what the law defines as “ultrahazardous activity,” to which a system of “strict” (i.e., non-fault based) liability attaches. Therefore, if the chemical factory causes any harm, its owners will have to pay, regardless of how diligent they were at attempting to prevent the harm.
Medical malpractice law, by way of contrast, generally holds doctors to a less stringent standard of care than that owed by common carriers or participants in ultrahazardous activities. A patient in a medical malpractice case has to prove that her doctor was at fault in committing some sort of error – by falling below the level care generally provided by other (fallible) doctors in the field.
The logic that explains this all seems simple: force people to pay when they cause harm and you reduce the amount of harm caused. But when the legal regime insulates people from the costs of their actions, the amount of that behavior climbs. So when you insulate the airlines from false imprisonment lawsuits for hours spent locked on a plane, you get more passengers sitting on the tarmac.
I’m not proposing strict liability for doctors. But when you ponder why medicine spends so much less on efforts to reduce human error than other fields, the legal regime at work seems part of the explanation.
About ten 2010 car models come equipped with “lane departure correction” – a feature that automatically corrects the steering of drivers who veer outside their lane.
It seems like the next safety breakthrough, the next invention that, like the seat belt or the airbag, will prevent a million car accident deaths. But will it? Economist Alex Tabarrok is not convinced. He sees the “Peltzman effect” at work in NHTSA testing of the feature.
The “Peltzman effect” is a social science term used to describe the new risks that drivers take once they obtain new safety features – risks that offset, in whole or in part, the increase in safety provided by the new safety feature. Readers of this blog have previously seen the Peltzman effect at work in our posts about football helmets. Football helmets offer protection against head injuries, which encourages players to play more aggressively, ultimately leading to more head injuries.
One case study in the Peltzman effect is the twenty year old woman in the NHTSA study of lane departure technology who told NHTSA investigators that she would love to have the lane departure feature in her own car because then she could drive home after a night of drinking, instead of having to stay at a friend’s house. The new safety gains offered by the lane departure feature will be, at least partially, offset by the new risks this young woman will take in attempting to drive home while intoxicated.
Fortunately, the pessimistic tale of the Peltzman effect does not appear to be the whole story. The more careful statistical analysis carried out in the article that Tabarrok links to suggests that the safety gains from lane correction will not be canceled out by new risks and that, in fact, auto lane correction will prove a net safety benefit for drivers.
As a side note, I hope to have the opportunity in the next few weeks to blog about a book that Tabarrok co-authored a few years ago: Judge and Jury: American Tort Law On Trial. The book bears on a lot of what I’ve blogged about one thing. Its section on juries and how jury composition determines the size of awards provides some great insights that can help to explain why Massachusetts jury verdicts vary so widely by county. Also, contra the suggestion of some tort reform blogs (that have accused me of misrepresenting economists’ support for our tort system), Tabarrok is another mainstream market economist who gives our tort system a largely clean bill of health.