Applying The Lessons Of Flight Safety To Medical Malpractice

airplane medical malpractice.jpgIt’s a subject that we’ve blogged about a lot: how applying aviation safety principles to medicine could revolutionize the practice of medicine and reduce the incidence of medical malpractice. (See earlier blog posts here and here).
Now Dr. James Bagian (whom we’ve previously blogged about here), a doctor and pilot, has co-authored a journal article about the specific lessons that medicine should be learning from aviation. You can read the article for yourself here. (H/t WSJ Health Blog). Unlike a lot of peer-reviewed journal articles, it’s on a level that’s completely accessible to the layperson. I hope to be able to comment on the article more extensively in the near future.

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New Defective Product Database Debuts, But May Be Short-Lived

cpsc-logo.jpgOn March 11, the Consumer Product Safety Commission (CPSC), as part of the Consumer Product Safety Improvement Act passed in 2008, launched a new easily-searchable database of dangerous and defective products – SaferProducts.gov. (H/t Professor Bernabe). The new website allows consumers to register complaints that they have about product safety.
The products’ manufacturers then have ten days to respond and then both consumer complaint and company response are uploaded to the web unless CPSC finds some reason to determine that the consumer complaint is bogus.
Seems like a valuable resource, right? I mean, why shouldn’t you have access to this information before you shell out for some big ticket item or a toy for your child that you want to make sure is safe? The database gives you virtually real-time feedback on products; there’s no lag time where you could be oblivious to a product’s dangers while the government dithers about whether to order a recall.
But Republicans in Congress, led by Rep. Mike Pompeo, managed to yank funding for the website two weeks before it debuted, saying it will “drive jobs overseas,” without explaining how or why the website could conceivably have that effect. So the future of SaferProducts.gov is in doubt. Check it out now before Congressional Republicans get their way and you can no longer see what products might hurt you.

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Supervisors Of Medical Residents Don’t Think Cutting Residents’ Hours Will Reduce Residents’ Fatigue

tired.jpgAccording to a recent study by the Accreditation Council for Graduate Medical Education, nearly two-thirds of the physicians who supervise medical residents doubt that a new regulation capping residents’ workdays at sixteen hours will reduce residents’ fatigue. (H/t WSJ Health Blog).
According to one of the doctors responsible for this survey, the survey’s respondents might doubt the effectiveness of cutting hours in reducing fatigue for a couple of reasons. First, the residents might not be less fatigued because they might use their time off to do something other than sleep. Second, residents who work fewer hours might rush more to cram all their work into a shorter day, leaving them more frazzled.
Overall, I think the medical profession is simply in denial about the issue of physician fatigue. As I blogged about a few weeks ago, a new study published in the Journal of the American College of Radiology shows that physician fatigue shows that fatigue sets in even over the course of an eight-hour (8:00 a.m.-4:00 p.m.) workday. By the end of an eight-hour shift, radiologists were twice as likely to make mistakes in reading a simple x-ray.
Doctors always protest that long hours are necessary for residents to learn all that they need to know. But residents are cash cows for teaching hospitals – their low salaries and the high-level tasks that they perform are very lucrative for hospitals. Reducing residents’ hours means that hospitals have to do more of their staffing with more senior doctors, whose salaries are much higher.
It’s time for medicine to come to grips with the problem of physician fatigue.

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Look How Easy It Is To Reduce Medical Malpractice: New York Patient Safety Program Reduces Birth Injuries By 99 Percent (!!!)

hospital nursery.jpgFile it under news that no one is talking about but that everyone should be: a new study published in the American Journal of Obstetrics and Gynecology reveals that a new obstetric safety program implemented in several New York hospitals has reduced medical malpractice payouts in those hospitals by 99 percent!
That number is so large that it almost takes a minute for it to sink in. A 99 percent reduction in medical malpractice payouts. One more percentage point and there would have been a one hundred percent reduction in medical malpractice payouts, meaning that medical malpractice would have cost insurers absolutely nothing! Zero dollars and zero cents. And all of this was accomplished in the span of three years with the implementation of this new safety program.
Of course medical malpractice payouts are not really a good surrogate for patient safety; payouts might go down because the hospitals got better defense lawyers. Or because injured patients can’t find plaintiffs’ lawyers willing to take their cases.
But the study also suggests that patient safety improved just as much as the hospitals’ bottom lines. So-called “sentinel events” — avoidable deaths and serious injuries — zeroed out during the course of the study.
What were the magical elements in this obstetrics safety program that proved so shockingly effective at preventing birth injuries? Was it a bunch of new, costly high-tech gizmos?
Although the hospitals that participated in the study abandoned their whiteboards in favor of a new system of electronic communications, a lot of the program’s features were decidedly low-tech and addressed a lot of the basic reasons why doctors make mistakes.
For instance, the participating hospitals each added three more physician assistants to their staffs and a “laborist” (a new term for an OB-GYN who works full-time for a hospital, much like a “hospitalist” in internal medicine). These additional staff members helped reduce physician fatigue, a major cause of medical malpractice that we’ve blogged about a great deal, most recently here.
Another low-tech safety innovation was the hiring of a full-time patient safety nurse who was responsible for educating staff on patient safety and conducting emergency drills.
These additional staff members and the new computers cost money. Do you think that if damages for pain-and-suffering in a birth injury case, such as a cerebral palsy case, were capped at $250,000 that hospitals would bother investing in these new safety measures? Where would their incentive be?
Medical malpractice can be easily reduced. That we might see medical malpractice in one sector almost completely eliminated over the course of a few years is, however, something of great surprise and a great cause for hope.
You can read more about the study here: “Obstetricians take big steps to avoid malpractice” (Crain’s New York Business.com).

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CDC Reports That Number Of Central-Line Infections In Hospitals Is Dropping (We Can Do A Lot Better Though)

PICC Line.gifAccording to the Centers For Disease Control, the number of central line infections in hospital ICUs has dropped fifty-eight percent since 2001. A central line infection might not seem like a big deal, but they are extremely serious: between twelve and twenty-five percent of patients who contract a central line infection die as a result. These deaths are part of the 98,000 deaths that are caused annually by preventable medical errors.
But really there’s no reason why we can’t get the number of central line infections to zero, or some asymptotically low level.
As I’ve previously blogged about, virtually all central line infections could be eliminated if doctors and nurses followed the simple five-step procedure for properly inserting a central line. However, at least one-third of the time, medical staff skip at least one of the steps, putting the patient at risk for infection.
Insertion of central lines is one area where hospitals could definitely benefit from rigid adherence to medical checklists. As we’ve often blogged about, a World Health Organization study shows that the use of medical checklists can reduce surgical deaths by forty-seven percent and major complications by thirty-six percent. Yet most American hospitals still don’t require the use of checklists.

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Young Doctors’ Overreliance On CT Scans

27vergheseimg-articleInline.jpgIn a New York Times op-ed piece published last week, entitled “Treat the Patient, Not the CT Scan,” Dr. Abraham Verghese takes young doctors to task for their overreliance on sophisticated medical imaging procedures, such as CT scans.
Dr. Verghese hits on some points about the use of CT scans that are familiar to readers of this blog – the extremely high amounts of radiation that patients are exposed to by medical imaging (it now accounts for more than 50 percent of the radiation that Americans are exposed to) and the high price tag of such procedures (a huge driver of our health care costs, given how much cutting-edge medical imaging is overused).
But Dr. Verghese really hones in a point that would have Drs. Jesse Pines and Zachary Meisel (figures whom we’ve previously blogged about here) nodding in agreement: the overuse of medical imaging is both a cause of, and effect of, a deterioration in young doctors’ basic clinical skills.
Dr. Verghese relates the story of a woman who was admitted to the Emergency Room with seizures and breathing difficulties. Doctors instantly ordered a CT scan of her chest. It revealed she had massive breast tumors and the breast cancer had spread and caused secondary cancers.
Although the CT scan detected the cancer, Dr. Verghese believes that the overuse of CT scans may have led to its becoming so advanced without any medical intervention. Dr. Verghese writes:

In retrospect, though, her cancer should have been discovered long before the radiologist found it; before the emergency, the patient had been seen several times and at different places, for symptoms that were probably related to the cancer. I got to see the CT scan: the tumor masses in each breast were likely visible to the naked eye — and certainly to the hand. Yet they had never been noted.

Maybe instead of a conversation about capping damages in medical malpractice cases, we should be having a conversation about our overreliance on medical imaging, the massive amounts of radiation we are absorbing as a result of that overreliance and the cost of that overreliance – both in terms of health care quality and in dollars.

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Big Pharma’s Billion Dollar Propaganda

pills.jpgIt’s a common refrain whenever drug makers are asked about the astronomical costs of some of their pills: the price of drugs reflects the billions of dollars of research and development that go into them. We hear the same refrain when drug makers get sued for selling dangerous and defective drugs: the drug makers complain that they should be entitled to some sort of immunity after spending billions of dollars developing the drug and getting FDA approval before bringing it to market.
However, as Timothy Noah revealed in an article in Slate this week, pharmaceutical companies spend nowhere near one billion dollars in bringing the typical drug to market. Big Pharma actually spends $55 million on R&D for the typical drug, according to a new study published by the London School of Economics.
So where did the $1 billion figure come from then?
Answer: It’s pharmaceutical-sponsored propaganda.
The $1 billion figure originally appeared in a 2003 study (that we’ll call the “Tufts study”) that was published in the Journal of Health Economics. The article’s lead researcher is from Tufts University and the article’s research was sponsored by the (drug company-funded) Tufts Center for the Study of Drug Development.
There are a number of methodological problems with the Tufts study. First of all, it was based off proprietary numbers that the drug companies supplied to study’s authors, that the researchers have not shared with others and that they themselves apparently made no effort to verify.
Another error with the study, a glaring one, is that the Tufts study considers basic “pure science” R&D that is funded by the government as a cost of drug development, even though it is not borne by any of the pharma companies and is, in fact, one hundred percent taxpayer-funded.
The Tufts study also ignores all of the tax breaks that pharma companies receive for R&D. When you factor in those tax breaks, the cost of R&D is reduced by thirty-nine percent.
Lastly, the Tufts study’s estimates of the costs of clinical trials and the amount of time that it takes to obtain FDA approval are flatly at odds with publicly-available government data. The Tufts study’s estimates of the costs of clinical trials are six times higher than data that’s available from the National Institutes of Health (NIH). The Tufts study’s estimate of the time it takes for a drug to get FDA approval – 7.5 years – is about twice what other data reveals. That’s no mean difference when a patent monopoly has a lifespan of twenty years.
Several months ago, there was a big controversy in the blogosphere about whether economists should adopt a code of professional ethics (they currently have none and many conflicts of interest in economics research go undisclosed). Matthew Yglesias had a great post on the top entitled, “Economists and Incentives.” The Tufts study, and the oft-repeated $1 billion pricetag for pharmaceutical R&D, suggests that it may be high time for such a code.

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What Kind Of Conservative Believes In Tort Reform?

constitution.jpgLaw professor William Jacobson senses a tension, bordering on self-contradiction, in two ideas favored by conservatives: the repeal of the Affordable Care Act (what is often styled as “Obamacare”) and support for tort reform measures, such as H.R. 5, a bill that I’ve previously blogged about, that would cap, by federal law, the damages that can be awarded in medical malpractice lawsuits filed in state court and litigated under state medical malpractice laws. (H/t Volokh Conspiracy).
Wherein lies the contradiction? Well, conservatives are normally backers of states rights. They like to trumpet the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Thus, they oppose the Affordable Care Act on the grounds that it exceeds the federal government’s powers to enact an individual health care mandate. They would have no constitutional objection to a state government enacting an identical mandate, but they believe that, under the Constitution, an individual mandate exceeds the federal government’s limited powers.
Lo and behold, when it comes to tort reform, conservatives’ qualms about the federal government’s powers vanish. There they favor the federal government intruding upon the administration of state medical malpractice law in state courts. Carrying the torch of tort reform, these same conservatives favor the imposition of a federal law capping pain-and-suffering damages in medical malpractice cases at a quarter of a million dollars.
They believe that Congress has the authority to pass such a law pursuant to its Commerce Clause powers; the same powers that they also say are not substantial enough to undergird the Affordable Care Act.
For consistency’s sake, congressional Republicans should jettison either their opposition to the Affordable Care Act or their support for capping damages in medical malpractice cases.

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Law Blog Roundup

  • Over at Torts blog, Professor Bernabe has a great post on Snyder v. Phelps, the Supreme Court case decided this week that said the funeral protests of the Westboro Baptist Church are protected by the First Amendment. What does the First Amendment and constitutional law jurisprudence have to do with torts?
    Well, lots, as Professor Bernabe points out. This case arose after the father of Lance Cpl. Matthew Snyder filed a lawsuit against the Westboro Baptist Church for money damages. The basis of that lawsuit was a tort action – intentional infliction of emotional distress. Torts isn’t all personal injury, you know.
  • AbnormalUse has a great and easily comprehensible review of last week’s Supreme Court preemption opinions. AbnormalUse manages to square the circle by reconciling Williamson v. Mazda and Geier v. Honda. If Gallivan, White & Boyd made up the Supreme Court, we’d probably see an even stronger pro-defense bias on the Court but the Court’s preemption jurisprudence would be a lot more lucid.
  • Eric Turkewitz demolishing New York’s proposal to cap noneconomic damages in medical malpractice cases.
  • Walter Olson reviewing me reviewing him. (Is that meta enough for you?).

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Review Of “Schools For Misrule”

Schools For Misrule Cover.jpgWilliam F. Buckley once quipped that he’d rather be ruled by the first 100 names in the Boston phone book than the Harvard faculty. Well, if Walter Olson’s to be believed, we’re already being ruled by the Harvard faculty – or at least Harvard’s law school faculty – it’s just that most of us don’t know it.
Olson, a senior fellow at the Cato Institute, is the author of Overlawyered.com, one of the oldest and most heavily trafficked legal blogs, and a prominent proponent of tort reform. I’ve been critical of some of his work in the past – in particular his lack of positive proposals for compensating the victims of mass torts – while supportive of some of the newer elements of his legal program, such as advocating for the reform of existing copyright and patent law and his criticisms of certain overzealous federal criminal prosecutions.
Olson’s latest work, “Schools For Misrule: Legal Academia and an Overlawyered America” has just been published by Encounter books and I had the opportunity to read an advance copy a few weeks ago. In “Misrule,” Olson turns his sights from the tangles of legal practice to what he regards as the seedbed of pernicious legal ideas – the American law school. Olson believes the ideas that permeate the legal academy should concern us all because:

“Bad ideas in the law schools have a way of not remaining abstract. They tend to mature, if that is the right word, into bad real-life proposals. Bad ideas in university French departments are of self-limiting importance, given that people on the outside are likely to go on speaking French in the usual way. Bad law can take away your liberty, your property, or your family.”

Whatever else you might think about “Schools For Misrule,” Olson is surely right in arguing that the ideas incubated in law schools can have a lot of real world significance. At least in my experience, Olson is also correct in arguing that law school faculty members are overwhelmingly liberal and law school instruction has a left-leaning bias. I part company with Olson on the issue of whether these facts should be cause for alarm, but, whether you agree with Olson’s conclusions or not, there is a lot that you can learn from “Schools For Misrule.”
For starters, Olson’s new work is a valuable corrective for those of us who tend to believe that law school pedagogy has remained essentially frozen in amber since Christopher Columbus Langdell instituted the use of the Socratic method and case study at Harvard in the late nineteenth century. “Schools For Misrule” points up exactly how much legal education has changed since Langdell’s time.

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