Memo To President Obama: Seven Ways To Reduce Health Care Costs Without Hurting The Victims Of Medical Malpractice

OBAMA SOTU.jpgRepublicans can’t wrap their heads around the idea that sometimes the most efficient markets are not the freest ones, and so they don’t really have any positive proposals for what to do about our health care mess. They don’t, for example, have any proposals for what to do about the fifty percent of Americans who now have preexisting conditions that could disqualify them from private health insurance.
Their one single, shimmering idea about how to cut health care costs is to reform medical malpractice law, primarily through imposing $250,000 caps on damages for pain-and-suffering. Regular readers of this blog will know that it’s a proposal that is as misguided as it is trivial. According to the most recent survey of the subject, published in the journal Health Affairs, the direct costs of medical malpractice – insurance premiums, insurance company payouts to the victims and defense lawyer costs – amount to 0.5% of total health care spending. Throw in the researchers’ best estimates of the cost of “defensive medicine” and the total costs of medical malpractice liability – both direct and indirect amount to 2.4% of health care spending. So even if we could eliminate the costs of medical malpractice entirely we’d only shave 2.4% off our health care spending. And, if we were to realize fully this 2.4% savings, it would mean completely stiffing the victims of even the most egregious medical malpractice — essentially what the Republican “plan” does.
Unfortunately President Obama lent the Republicans’ eminently bad ideas a patina of seriousness this week during his State of the Union, when he noted: “Still, I’m willing to look at other ideas to bring down costs, including one that the Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.”
In light of the President’s disappointing and confounding remarks, this humble blog herewith offers President Obama (or at least its readership) seven ways of cutting health care costs without doing so on the backs of those crippled and maimed by medical malpractice.

  • Medical Hot-Spotting: Regular readers of this blog will know that one of its heroes is Dr. Atul Gawande, probably the most creative and insightful thinker about health care policy that we have. Gawande’s latest New Yorker article is finally out from behind the paywall and it’s a terrific story about a relatively new cost-control technique called “hot spotting.” It involves identifying those hugely expensive patients who are responsible for a tremendously disproportionate percentage of health care costs and then delivering to them the social services and customized medical care that they need.
    Dr. Jeffrey Brenner, one of the main proponents of hot-spotting, was inspired by the Compstat crime-tracking system that Commissioner William Bratton first implemented in New York and that contributed to the dramatic drop in violent crime rates there and in other cities that have adopted the system. Compstat micro-maps crime data and allows police to shift patrols to various hot spots that flare up. When Dr. Brenner applied the same mapping technique to health care costs in Camden, NJ he found that a few buildings in Camden – a nursing home and a public housing project – were costing taxpayers a fortune in health care costs. Zooming in further, Dr. Brenner found a small group of people who were costing the system a fortune – one patient had a $3.5 million annual health care tab. Thirty percent of Camden’s health care spending went to one percent of its residents.
    Dr. Brenner developed a system to deliver intensive preventive care to this handful of patients – by having doctors and social workers make sure that these patients showed up for follow-up appointments, that they took medications regularly, that they got prescriptions refilled, etc. And Dr. Brenner’s program has succeeded: its patients have cut their (massive) health care bills by fifty-six percent.
    Others profiled in the story – from Dr. Rushika Fernandopulle to the software company Verisk – have experienced similar successes by identifying the highest-cost patients and targeting them for specialized care.
    (The themes of Dr. Gawande’s article reminded me of a favorite Malcolm Gladwell article – “Million Dollar Murray” – about how we might actually lower welfare costs by spending more on welfare for certain particularly troubled recipients).
    Of course, as Dr. Gawande points out, special interests, like hospitals, are likely to lobby against pouring money into hot-spotting because hot-spotting reduces the demand for their services. So it is especially important, President Obama, that you use your bully pulpit to back hot-spotting.
  • Reduce Unnecessary Surgeries By Educating Patients About Whether The Guidelines Indicate Surgery For Their Conditions: A while back, Dr. Neil Baum had a great blog post over at KevinMD.com on seventeen ways patients can protect themselves from medical malpractice. One of the best pieces of advice that Dr. Baum had was to urge patients to consult the National Guidelines Clearinghouse to see what treatment the most recent research suggested for their conditions and to challenge their doctor if he recommended a surgery or procedure that was contrary to the Guidelines.
    Educating patients about Guidelines could help address some problems that have reached epidemic proportions. Since the time of Dr. Baum’s blog post, the American Medical Association has published a study about the use of implantable cardiac defibrillators showing that one-in-five defibrillator surgeries are performed outside of situations where the guidelines recommend surgery. The patients who receive defibrillators outside the circumstances where the guidelines recommend surgery are three times more likely to die.
    Of course, if you’re hospitalized three weeks after a heart attack and a doctor recommends defibrillator surgery to you, you’re likely to follow his advice if you don’t know that the evidence shows that you’re likely to be harmed by having surgery so soon after a heart attack.
    The only people benefiting from these unnecessary surgeries are the medical device manufacturers – who make tens of thousands of dollars from every defibrillator and spinal fusion surgery.
  • Reduce Smoking and Obesity: Yes, it’s really that simple. I’m always amused that the same Republicans who oppose an expanded role for government in health care are the same ones who have no problems with the corn subsidies that make corn so cheap that it’s converted in high-calorie high-fructose corn syrup that sweetens our sodas and contributes to obesity. If government’s the problem in health care why is welfare for farmers so good?
  • Implement Policies That Will Lead To More Income Equality: Income inequality actually has a profoundly negative effect on public health. Societies in the developed world with higher rates of inequality also have higher rates – sometimes ten times higher – of mental illness, infant mortality, obesity, teenage pregnancies, homicide, suicide and heart disease. Developed market democracies with high levels of equality – such as Japan, Sweden and Norway – are healthier.
    This relationship also holds within the United States. States with high levels of income equality, such as New Hampshire, Vermont and Utah, are healthier than Southern states and New York, where there are high levels of inequality. You can listen here to a great NPR podcast about “The Spirit Level,” the new book by Drs. Richard Wilkinson and Kate Pickett, about the effects of inequality on public health.
  • Loosen Professional Licensure Requirements: This is a libertarian idea that I’m surprised that Republicans don’t get behind. Part of the reason why health care is expensive is that doctors are scarce and therefore command high salaries. Doctors are scarce in part because of artificial barriers to entry – in the form of licensure requirements for the practice of medicine.
    The anti-competitive and protectionist policies of state medical boards make it difficult for highly-qualified foreign doctors to practice here. They mean that you can’t get a botox injection at a day spa and have to go to a dermatologist instead. And that your dental hygienist can’t clean teeth outside of a dentist’s office where she is supervised.
    Let’s see what medical procedures could be performed just as well (and more cheaply) by paraprofessionals and give them the freedom to compete with doctors.
  • Shift Status Competition Among Doctors From Dollars To Prestige: Regular readers of this blog are very familiar with Dr. Atul Gawande’s investigation of why Medicare costs in McAllen, TX are double what they are in the nearly demographically identical city of El Paso, TX. Medicare costs in McAllen, TX are nearly the highest in the country.
    Dr. Gawande’s explanation was simple: an entrepreneurial ethos of making as much money as possible had replaced an ethos of professionalism among many of McAllen’s doctors. Meanwhile, health care costs are low and the quality-of-care is excellent in academic communities like Hanover, NH (Dartmouth Medical) and Rochester, MN (where the Mayo Clinic is based).
    My guess is that doctors in those tiny academic communities don’t compete for dollars; my guess is that status competition among doctors there is primarily based on who’s published what article most recently in which prestigious journal. We need to find a way to get doctors to compete among each not for big bucks, but for prestige and professional esteem.
  • Spend More On Pure Science:The Golden Age of Pharma is over and pharma companies are no longer willing to invest the money in the fundamental science that will lead to the new wonder drugs and therapies of tomorrow. We need more programs like this new NIH program focused on getting basic R&D of new drugs done and then handing the baton off to pharma companies to bring the drugs to development.

So there you have it, seven ideas for lowering the cost of health care without doing so at the expense of the victims of medical malpractice.

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New Report Shows Unexplained Doubling Of Serious Dog Bite Injuries Over Fifteen Year Period

dog bites.jpgAs reported by The New York Times, a new Department of Health and Human Services report reveals that the number of dog bites requiring hospitalization nearly doubled over a fifteen year period, increasing from 5,100 dog bite victims in 1993 to 9,500 in 2008.
Experts are baffled by the dramatic spike. The increase can’t be explained by population growth because the increase in serious dog bites vastly outstripped population growth. Nor can the increase in dog bites be explained by an increase in dog ownership since dog ownership increased only slightly during the relevant period.
With emergency room visits for dog bites costing an average of $18,200, it is not surprising that dog bites account for one-quarter of homeowner’s insurance claims.

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Blog Roundup

  • The Oregon Attorney General is suing Johnson & Johnson for a secret recall of Motrin that left some bottles of defective product on the shelves. (Hat tip Consumerist). Instead of instructing retailers to pull the bottles from the shelves, hired contractors to go undercover, armed with credit cards that would bill J&J, and buy up all of the defective bottles that they could find. At the close of this secret recall operation, J&J execs sent around emails proclaiming the double-secret probation recall was a “great success” and a “win.”
  • As Tyler Cowen reports, the odds of dying in a horse accident in New York City in 1900 were 1 in 19,000. The odds of dying in a car accident today in New York City are 1 in 26,000. Of course, as law prof Eugene Volokh pointed out in this long-ago post, those numbers aren’t the only consideration. In the late nineteenth century, horses daily deposited an estimated 2.5 million pounds of manure on New York City’s streets.
  • AbnormalUse reports on what is believed to be the first ever wrongful death lawsuit that a chewing tobacco company has settled. As AbnormalUse explains, the unique facts of this case might mean that this is the last chewing tobacco settlement that we are likely to see for a long time.
  • Eric Turkewitz on what AVVO ratings might not tell you about your lawyer – namely that he is a registered sex offender and was once disbarred.
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Dutch Study Finds That Use Of Checklists Could Reduce Medical Malpractice Lawsuits By One-Third

checklist.jpgIf there’s one theme that this blog has hammered away at relentlessly, it’s the importance of checklists in improving patient safety. In a massive World Health Organization study, checklists were shown to reduce surgical deaths by forty-seven percent and major complications by thirty-six percent. Yet only one-quarter of American hospitals are using checklists.
Now comes a Dutch study, published in the Annals of Surgery, that reviews the errors committed by doctors in 294 successful Dutch medical malpractice lawsuits. The study found that in twenty-nine percent of the medical malpractice lawsuits, the error that the doctors committed would have been listed on the relevant checklist. Thus, had all the Dutch doctors adhered to the relevant checklist, there would have been nearly one-third fewer medical malpractice cases.
The stuff of the typical surgical checklist is not rocket science. A typical checklist prompts doctors to make sure the operating schedule is correct, that all the necessary equipment is at hand and that the surgical area is marked, among other things.
Reacting to the study, Boston-based surgeon Atul Gawande, one of the architects of the WHO pilot project, had strong words for surgeons who do not follow checklists: “This kind of evidence indicates that surgeons who do not use one of these checklists are endangering patients.”

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New Database Allows Massachusetts Patients To Review Drug Company Payments To Their Doctors

Massachusetts Database.jpgAs reported by Liz Kowalczyk of the Boston Globe, Massachusetts has become the first state in the nation to post online all payments that drug and medical device companies make to the state’s health care providers. You can use the database for yourself by clicking here.
For years, Minnesota has published similar information regarding its health care providers, but its database is nowhere near as comprehensive or user-friendly as the new Massachusetts database.
In most of the country, obtaining information about drug company payments to doctors is tremendously difficult. As noted in a previous blog post, Sen. Chuck Grassley had to use some Congressional muscle to get the nation’s largest medical device manufacturer – Medtronic – to reveal the payments that it makes to doctors. In addition, as underscored by the Wall Street Journal’s investigative series “Secrets of the System,” connecting drug company payments to doctors to the types of treatment they prescribe for their patients, is made very difficult by an old federal court order that exempts Medicare from having to provide such information pursuant to Freedom of Information Act requests.
The new Massachusetts database is a good day for transparency and for more open doctor-patient dialogues.

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Boston Personal Injury News Roundup

  • You may recall last April’s recall of Simplicity cribs, which we previously blogged about. Now, in the form of a Boston Herald story, comes news that the death of a Massachusetts infant from Attleboro was a “key factor” that prompted the Consumer Product Safety Commission to recall full-sized Simplicity cribs because of the risks they posed of suffocation and strangulation.
    CPSC spokesman Scott Wolfson said, “In the full history of Simplicity cribs and bassinets, there were more than a dozen deaths, including the tragic case in North Attleboro. Simplicity cribs are one of the deadliest products that we’ve dealt with in recent years.”
  • Five Massachusetts auto insurance companies are now offering optional pet injury coverage that will pay veterinarian’s bills for your pets if they are injured in a car crash.
  • If you went to Fenway Park at all last year, they were a familiar sight: scantily clad young women in bright-colored wigs who were attempting to sign up Red Sox fans for a bone marrow registry. Now comes news that UMass Medical Center was behind the program and was spending $50,000 a week on the models. For every volunteer who signed up, UMass Medical Center would bill insurance companies for $4,300, when others in the industry perform the same test for approximately $100. See the WHDH-TV and Boston Herald stories here and here.
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How Many Surgeons Does It Take To Count Your Vertebrae?

counting_blocks.gifOver the past four months, orthopedic surgeons at Beth Israel Deaconess Medical Center have committed the same surgical error three different times – by operating on the wrong vertebra of patients undergoing back surgery.
According to recent news stories about the errors, two of the “wrong site” surgical errors were uncovered only after patients complaining of ongoing back pain underwent post-operative x-rays. One surgeon committed the same “wrong level” error twice between September and December of 2010.
After the third error occurred, the Boston hospital implemented new procedures to avoid further repetition of the error. The new procedures include following a checklist developed by New England Baptist Hospital to help surgeons mark the correct vertebrae during surgery. We’ve blogged about the importance of such checklists and American hospitals’ reluctance to adopt them here, here and here.
Thankfully, none of the patients seem to have suffered any permanent harm as a result of the medical mistakes and at least one patient’s back pain seems to have spontaneously resolved even after the wrong vertebra was operated on.
Dr. Kenneth Sands, senior vice president of health care quality for Beth Israel Deaconess, said that the spate of back surgery errors, “…is really strange and we really don’t have an answer as to why these happened” in a cluster.
In at least one of the cases, however, it appears that the presiding surgeon and a surgical fellow who was assisting him followed different systems for numbering the vertebrae and, consequently, a miscommunication occurred about what vertebra was to be operated on.
The answer to the age-old question, “How many surgeons does it take to count your vertebrae?” appears to be, “More than two, at least if they’re using different numbering systems.”
Let’s hope the new checklists at Beth Israel Deaconess get their surgeons on the same page.

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Why Should A Truck Driver Have To Get More Sleep Than Your Surgeon?: New Research Raises Questions About Physician Fatigue

sleepy doctor iii.jpgA couple of weeks ago, I blogged about the divergent approaches that we have taken to addressing the public health problems of medical malpractice and auto accidents. We seem to have taken a “hands off” approach to medical malpractice (even though it kills 100,000 people a year), going so far as to enact “tort reform” that insulates insurance companies from having to pay out in medical malpractice lawsuits. On the other hand, we seem to have taken a “get tough” approach to car accidents, cracking down on texting and driving while intoxicated and insisting that car manufacturers offer new safety devices such as airbags.
In reading through two new journal articles touching on physician fatigue, it dawned on me that we also take a tougher approach to operator fatigue on our roadways and in our airways than we do in the operating room. We subject truck drivers to stringent “Hours of Service” requirements to insure that their fatigue doesn’t harm innocent people who share the roadway with them, but, aside from some lax regulation of the number of hours that medical residents can be forced to work, doctors have a great deal of autonomy in deciding whether they should keep on truckin’ or take a snooze.
New research, however, is calling into question whether this is such a good idea. A recent journal article in the Journal of the American College of Radiology (hat tip Dr. Bob Wachter) shows that, over the course of an eight-hour work day (8 a.m.-4 p.m.), radiologists suffered a statistically significant decline in their ability to evaluate x-rays. As the (eight-hour) day wore on, radiologists were more likely to miss a fracture on an x-ray and to see a fracture where there was none. By the time 4 p.m. rolled around, nearly 1 in 20 more x-rays were read incorrectly. The article should be troubling because very often radiologists are working more than an eight-hour shift and very often they’re doing something more demanding than reading an x-ray – such as reading an MRI or CT scan with dozens of images.
This study follows on the heels of a 2009 article published in the Journal of the American Medical Association showing that daytime surgery patients suffer an eighty-three percent increase in complications when their surgeon is working on less than six hours sleep. Citing the JAMA study and other recent work, an essay in last week’s New England Journal of Medicine recommended the implementation of policies that would minimize the risk of a patient being treated by a sleep-deprived surgeon. The essay suggested that how much sleep a surgeon had the night before surgery might implicate issues of informed consent (!) and that patients should be informed of their surgeon’s sleep schedule the night before, with the option of postponing their surgeries if their doctor hadn’t gotten enough sleep.
Hopefully, these recent developments signal a sea change in how the medical profession addresses the issue of fatigue. In his “Wachter’s World” post on the radiology study, Dr. Wachter related a telling anecdote about the late, legendary heart surgeon Michael DeBakey. While visiting Baylor College of Medicine, someone reverentially told Dr. Wachter of Dr. DeBakey’s feat of performing sixteen open-heart surgeries in a single day. Instead of being impressed, all Dr. Wachter could think was, “Boy, I wouldn’t want to be patient #16.”
When you are possessed of Dr. DeBakey’s singular talents, you must feel an immense burden. There are more patients who need your life-saving abilities than you could possibly ever treat and have time for rest and family. But there is a tipping point where you’d be better off with the next-best doctor than you would be with Dr. DeBakey and medicine is finding out that that tipping point might be reached earlier in the day than anyone had ever imagined.

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American Bar Association’s Blawg 100

law blog 100 ABA.JPGA little over a month ago, I blogged about the honor of being included in the ABA’s Blawg 100 – 100 law blogs hand-picked by the editors of the Journal of the American Bar Association as their favorites.
This month, after the close of voting by members of the public, the ABA Journal handed out special awards based on voting by readers. I wanted to congratulate Abnormal Use for winning in “Torts.” I enjoy Abnormal Use’s substantive posts on product liability law, and I relish their lighter fare – from their interview with Phil Morris (aka “Jackie Chiles” of Seinfeld fame), to the pop art aesthetics of their favorite legally-themed comic book covers.
I also wanted to thank Eric Turkewitz. In the first and second Blawg 100 awards, the editors of the ABA Journal neglected personal injury lawyers and Eric’s on-line campaigning got the ABA Journal to pay attention to the great personal injury law blogs out there.
While it’s inevitable that in a subjective contest like this, some deserving blogs will be omitted, I don’t envy the work that the editors of the ABA Journal have to do in reading thousands of blogs and agreeing upon 100.
So thanks to Eric and the ABA Journal and congratulations to Abnormal Use. And let’s all keep on blogging for the Fifth Annual Blawg 100!

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Operating For Profit?

unnecessary surgery.jpgIf you had to guess what hospitals, over the period of 2004-2008, billed Medicare for the most spinal fusion surgeries what hospitals would you name? Number one on the list – Johns Hopkins – probably would not surprise you. It’s a massive teaching hospital and one of the finest hospitals in the country. Number two on the list – UCSF Medical Center – wouldn’t raise many eyebrows either. Again, a massive teaching hospital.
But you might be taken aback a bit by who occupies the bronze medal space on this podium: Norton Hospital in Louisville, KY. The story of how a backwater hospital in Kentucky came to bill Medicare for $48 million in spinal fusion surgeries was recently told by Wall Street Journal reporters John Carreyrou and Tom McGinty in the latest article in the Journal’sSecrets of the System” series (which uses publicly available Medicare data to uncover possible fraud and waste).
As the Journal article notes, spinal fusion is one of the most hotly debated surgeries in medicine. It involves fusing together two or more vertebrae in the hopes of alleviating a patient’s back pain. A number of orthopedic surgeons contend that fusion surgery is only indicated for a small number of patients with back pain. Other surgeons, such as the team at Norton Hospital, find spinal fusion to be useful in a much wider set of cases, including cases where the patient is suffering from disk degeneration due to aging.
The disagreement among surgeons about the usefulness of spinal fusion would only be an arcane medical debate if some surgeons weren’t being paid millions of dollars by medical device makers for promoting the use of their hardware. The hardware used in a single spinal fusion surgery runs into the tens of thousands of dollars (“You can easily put $30,000 of hardware in a person during a fusion surgery,” says one medical professor quoted in the piece). Last year a half-dozen surgeons at Norton Hospital earned more than one million dollars apiece from hardware manufacturer Medtronic.
The payments – which some characterize as “kickbacks” and some call “royalties” – are supposed to be for contributions that the Norton Hospital doctors made to the development of the hardware technology. But the innovations for which the doctors supposedly receive these payments are slight; in a day and age when virtually anything can be patented (a patent is meaningless; it’s whether the patent stands up to a challenge that’s important) some of the Norton Hospital doctors receiving millions aren’t named on any patents. Critics contend that the payments are really kickbacks paid to the doctors for getting their colleagues and others to use Medtronic products.
Thanks to pressure by Sen. Chuck Grassley, Medtronic now discloses “royalty” payments to doctors on its website. If you have a question about whether Medtronic is paying your doctor for his work with the company, you can discreetly check by using Medtronic’s Physican Registry, now available here.
Of course, if your spinal fusion surgeon receives payments from Medtronic, all that information will also be buried somewhere within the informed consent packet that the surgeon has you sign prior to surgery. That boilerplate, as one back fusion patient detailed in the Journal story learned, is a virtually ironclad defense in some cases where patients were injured by medically unnecessary surgeries. Assuming that a doctor, prior to performing an operation of dubious necessity, has disclosed all of his financial interests to the patient and his care in performing the surgery did not fall below that of the ordinary surgeon, you will have a very hard time with a medical malpractice lawsuit even if you were injured and only subsequently learn of the troubling conflict of interest raised by the doctor’s surgeries and the medical device payments.
Ultimately, the Journal story should not be a surprise to the readers of this blog. We’ve seen how doctors in McAllen, TX bilk Medicare for unnecessary tests and procedures, we’ve seen doctors bilk insurers for unnecessary cataract surgeries and we’ve seen dialysis centers who have developed techniques to squeeze every last penny out of Medicare. It’s all part of the fee-for-service model that is driving up our health care costs.

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