Medicare Has The Right Idea

As we’re fond of reminding you here, the costs of medical malpractice don’t amount to a hill of beans when it comes to our health care spending. The legal fees and payouts from medical malpractice amount to 0.5% of our health care spending.

It would be a great thing for the tens of thousands of Americans killed each year by medical malpractice if we succeeded in reducing the incidence of medical malpractice (which we can) but it would not help us bend the curve of health care spending.

To get control of health care spending, we need to get a handle on what most experts consider the biggest driver of health care costs: fee-for-service medicine. Under our fee-for-service model, doctors and hospitals get paid according to how many procedures, tests and other services they perform and not according to how healthy they keep their patients. This gives doctors and hospitals an incentive to run up the bill by ordering unnecessary therapies, instead of focusing on the long-term health of the patient.

So it is a good thing that, starting next year, Medicare will cut reimbursement rates to hospitals with high levels of patient readmission. Part of the impetus for this move is a recent study from Dartmouth school of medicine, showing that the rate of Medicare patients being readmitted to a hospital within thirty days has increased over the past decade.

Let’s hope this precipitates a broader move to a focus on patients’ long-term health.

Private insurance companies also bear part of the blame here. They will pay top dollar for a cutting-edge surgery but are misers when it comes for paying for recuperative stays after a surgery. But if paying for that extra day of recovery time reduces the risk of complications and, thereby, the rate of readmission, it’s worth paying for.

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Please Excuse The Blogging Miscues

You may have noticed that the blog was undergoing maintenance and repairs from Monday to today. As part of that process, I switched over to a WordPress platform. I’m still getting used to everything and hope to get up to speed quickly. In the meantime, please bear with us as the bugs are worked out.

In related news, a slight re-design of the blog will be rolled out sometime within the next couple weeks. Hopefully the new typeface and style will reduce some of the eyestrain of the old design.

I also hope that RSS feed subscribers check to make sure that they receive uninterrupted feeds over the next few weeks.

As always, thank you for reading what is on my mind.

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Should Your Doctor Be Taking “Smart Drugs” And Other Medical Malpractice Hypotheticals

smart drugs.jpgIn this week’s news were a couple of stories that I thought made neat medical malpractice hypotheticals.
The first comes from a new research study showing that doctors who take so-called “smart drugs” (drugs that improve focus and concentration like ADHD drugs and anti-narcoleptic drug Modafinil) perform better than doctors who don’t. The study prompted Instapundit’s Glenn Reynolds to ask, “If ‘smart drugs’ improve doctors’ performance, is it malpractice not to take them?” The answer is “Certainly not,” for reasons explained in this earlier blog post of mine. But perhaps medical malpractice law should move in the direction of sanctioning sleep-deprived doctors, as I argued in this post.
The week’s other interesting (to me at least) med mal hypothetical comes to us courtesy of Spencer v. Roche, a case decided this week by the First Circuit Court of Appeals. Spencer was a case in which the plaintiff sued for alleged violations of his right to be free from unreasonable search and seizure under both the US Constitution and Massachusetts Declaration of Rights. In 2005, the Plaintiff, Spencer, was stopped by police for driving without a license. Upon learning from a confidential informant (CI) that Spencer had supposedly placed a bag of cocaine into his rectum a short time before, police arrested Spencer and obtained a search warrant to search his anal cavity.
Police then transported Spencer to Saint Vincent’s hospital, where a doctor took a KUB x-ray of Spencer’s anal cavity and stomach area against Spencer’s will and apparently while Spencer was handcuffed. Lo and behold, the ultra-reliable criminal snitch was wrong and no drugs were found on Spencer. He was released and sued under 42 USC 1983 and the Massachusetts Civil Rights Act for violations of his Fourth Amendment and Article XIV rights to be free from unreasonable search and seizure. This week, the First Circuit Court of Appeals ruled against Spencer, holding that the search was reasonable under the federal and Massachusetts constitutions.
The Spencer case raises the question of whether any medical malpractice claims would have succeeded. One element of a medical malpractice case is the existence of a doctor-patient relationship and, while that element would be problematic here, let’s assume for the moment we pass that threshold. At that point, issues of informed consent would come into play.
A couple of years ago, American Medical News reported on a medical malpractice lawsuit against a Texas surgeon who performed surgery on a patient, evidently against his will, in order to recover a bullet that implicated the patient in the commission of a crime. As the article noted, “According to American Medical Association policy, physicians should honor informed consent policy, both in ethics and law, “unless the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent.” The article suggested that the doctor might rely on Rule E-2.065 of the American Medical Association’s ethical guidelines, which pertains to “Court-Initiated Medical Treatments In Criminal Cases.” But it seems plain, from reading the rule, that it is meant to apply in cases where, for example, the court orders forceful medication of a mentally ill criminal.
British medical ethics are much clearer. It seems clear under the British Medical Association’s guidelines for “Intimate Body Searches,” which state that, “no medical practitioner should take part in an intimate body search of a subject without that subject’s consent.”
Overall, a week’s worth of interesting tort news.

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The Worst Medical Malpractice Is The Surgery You Did Not Need In The First Place

spinal surgery medical malpractice.jpgLast week, The Wall Street Journal ran a chilling story on the prevalence of doctor-owned medical device companies and the conflicts of interest that arise when doctors are implanting medical devices whose sales they profit from.
The heart of the story involved a 48-year old Baptist preacher named Gary Steven Moore. Moore died on the operating room table in the midst of a 360-degree spinal fusion surgery. Medically speaking, Moore was a poor candidate for spinal fusion surgery because he had had 11 previous bowel surgeries and suffered from diabetes and heart disease.
But Moore’s surgeon, Dr. Adam Lewis, recommended the surgery to Moore, never disclosing that he was part owner of a company named Spinal USA, whose hardware would be implanted during the surgery. On this single surgery, Spinal USA would earn tens of thousands of dollars for its hardware.
Unfortunately, the specter of doctors profiting from the medical hardware they use during surgery is not an uncommon one. Doctors are able to get around anti-kickback laws by starting small medical device companies of their own. And the FDA’s 510(k) loophole, which allows medical device makers to market products without FDA approval if they resemble devices already on the market, means that it is cheap for doctors to do so.
As The Wall Street Journal story noted:

Critics of such arrangements say they give surgeons an incentive to do more operations, and that the conflict of interest has led to a spate of unnecessary back surgeries that waste health-care dollars and often do patients more harm than good. “Patients are having huge operations that are un-indicated because of this,” says Scott Lederhaus, a neurosurgeon in Pomona, Calif., and member of the Association for Medical Ethics, an organization of doctors that focuses on conflicts of interest.

According to a recent report by the Department of Health and Human Services’ Inspector General, at least twenty states are home to surgeon-owned medical device companies. And these companies are branching out, from spine surgery to hip, knee and cardiac surgery.
It’s bad enough to be a victim of medical malpractice. But when the surgery was unnecessary in the first place — that’s the worst kind of medical malpractice.

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Link Roundup

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  • A couple of weeks ago, I blogged about “Paradise Lost,” a documentary about the “West Memphis Three,” three men convicted of the crime who were recently released from prison after winning the right to a new trial on appeal. To me, one of the most amazing parts about the documentary was the access that the defense lawyers allowed the documentary camera crews. At the tail end of my post, I beseeched Professor Alberto Bernabe (on whose blog recommendation I viewed “Paradise Lost”) to give his take on the ethics of the lawyers’ inviting in the camera crews and giving them such access, professional ethics being one of Professor Bernabe’s areas of specialty.
    Well, my request earned a response and that response is now available here. As Prof. Bernabe, explains there are several ethical considerations that come into play when lawyers cooperate with media accounts of their cases, including rules prohibiting lawyers from profiting from literary deals made while still representing their clients. You should read Prof. Bernabe’s full treatment of the ethical issues for yourself.
    Ultimately, I guess, whether the lawyers’ actions were ill-advised, as I had initially thought, or whether they were completely prudent, things worked out for the clients’ benefit: the documentary attracted the attention of rock stars and other celebrities who helped finance the costs of their appeals.
  • At the risk of Professor Bernabe dominating this week’s roundup, a post of his about a new Alien Tort Statute case making its way to the Supreme Court, inspired me to wonder why these Armenian-American attorneys are trying to apply the Third Amendment extra-territorially instead of making claims under the ATS. The Third Amendment claim seems highly dubious to say the least.
  • Also from the Concurring Opinions blog, Professor Frank Pasquale with a very good post on Occupy Wall Street.

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If We Get Rid Of Lawyers Will We Have More Lawsuits? And A Thought About Brain Drain

lawyer-salary.jpgThere’s been a lot of chatter in the blogosphere lately about whether there should be any professional requirements connected with lawyering. The issue has been brought front-and-center by the publication of a new book by libertarian authors arguing that anyone should be able to provide legal services for a fee, regardless of whether he’s attended law school, passed the bar or obtained any sort of credential. Over the course of a couple of blog posts, I chimed in with my own two cents, essentially backing the idea.
I wasn’t planning on blogging any further about the topic but last weekend The Press of Atlantic City cited me in an editorial piece addressing the controversy. The piece also cited Chidem Kurdas, a NYU economist, worrying that deregulation of the legal profession would lead to an influx of a large amount of new lawyers and spawn a gigantic new wave of litigation. Overlawyered’s Walter Olson opposes the idea for pretty much the same reasons.
I wish to raise two arguments in reply.
The first is that I think the idea that deregulating the legal profession will lead to a huge influx of new lawyer/amateurs and a huge wave of new litigation is a bit silly — especially in the long run. Kurdas and Olson’s thinking suggests to me a mistaken belief in a stable equilibrium of lawyer salary, even in a deregulated world. The moment that anyone is free to provide legal services is the moment when the bottom drops out of lawyers’ incomes. When the supply of lawyers goes up, their prices will go down. There won’t be a long-lived influx of new lawyers ginning up all kinds of new lawsuits if they discover there isn’t as much money to be made as they had hoped. They’ll return to their prior occupations.
The second point I wish to make is that driving down lawyers’ salaries will have another beneficial effect on the economy: it will prevent the brain drain of science PhDs into intellectual property law that we are currently witnessing.
Over the past decade or so, we’ve heard a lot of commentators bemoaning the fact that a lot of the nation’s best and brightest head to Wall Street. This includes a number of “quants” — the geeky math and science PhDs who head to Wall Street because otherwise they’d have a hard time eking out a living with their astrophysics degrees.
Once on Wall St., these young men and women, some of the nation’s best and brightest, put their talents to use in devising complex stock trading algorithms. The tragedy is that, if Wall Street weren’t such a big part of this nation’s life, these young scientists would be in a lab somewhere developing ideas that add to the nation’s wealth. But, given the fact that Wall St. salaries are so hard to resist, these talented young people instead spend their careers in zero-sum games where one trader’s loss is another’s gain and there is no net gain to anyone’s wealth.
The same trend is going on in the nation’s law schools. Lots of top science and engineering PhDs are abandoning their science careers and heading to law school to become patent lawyers. As patent lawyers, they generally start out making double or more what they made before.
In my own law school “section” (the contingent of your law school class with whom you take all your first-year classes), there were roughly a half-dozen science PhDs, a couple of top-notch engineers and one Harvardmathematics PhD, who had been a tenured professor at a major research university. I can’t speak to what drew these extremely talented people to law school – whether it was the potential for earning a higher salary than they could in their first careers, or whether it was intellectual interest – but I do remember feeling sad that so many truly remarkable minds were giving up careers where they might discover the cure for some disease for a career of staking out the boundaries of patent holders’ monopolies.
Allowing anyone to become a lawyer would partially drive down the salaries that lure some of our best and brightest into becoming lawyers and divert their talents into wealth-creating enterprises. It would also lower the costs for scientists who decide, after a taste of the law, that they are more suited to the laboratory. Once a lawyer-scientist has acquired six figures of student loan indebtedness, it’s hard to go back to the lab bench. If no law school were required for lawyering, the decision would be a much easier one.

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Power Saw Accidents And Safety Standards: Important Decisions From CPSC And A Federal Court

power-saws-1.jpgLast Wednesday was a watershed day for preventing power saw accidents. On Wednesday, the Consumer Product Safety Commission voted unanimously formulate new rules that would make power saws safer. Also on Wednesday, the First Circuit Court of Appeals upheld a $1.5 million jury verdict in favor of a worker whose hand was severely injured in a power saw accident, due to the fact that the Ryobi saw that he was using was not equipped with SawStop “flesh detection” technology.
We’ve blogged quite a bit about SawStop before. This incredible new (and old-fashioned) technology makes power saw accidents completely avoidable. But the major power saw manufacturers, companies like Black & Decker, Delta, Rigid and Ryobi, have not licensed the patented technology behind SawStop and so woodworkers, contractors and tradesman continue to lose fingers and suffer approximately 67,300 serious power saw accidents a year.
The principle behind the patented SawStop technology available in SawStop-brand saws is relatively easy to understand. Have you ever seen one of those old-fashioned touch lamps where you touch the base of the lamp and the light turns on and off? The way those lamps work is that a small electrical current passes through the base of the lamp and when your hand (which is largely water, a good electrical conductor) touches the base of the lamp, it interrupts the current and triggers the off switch. SawStop brand technology works in a similar way: the saw blade carries a small electrical current and, when that current gets interrupted, it triggers a brake mechanism that stops the blade, reducing its speed from 5,000 rpm to 0 rpm in several milliseconds.
The CPSC may or may not mandate SawStop-equivalent technology when it decides its new rules. But SawStop-type flesh detection technology is one option that CPSC is weighing. CPSC has 60 days to formulate its new rules and, during that period, will be welcoming comments from industry groups and consumers.
Regardless of whether CPSC decides to mandate the SawStop technology in all saws, product liability lawsuits will be able to continue.
On Wednesday, in Osorio v. One World Technologies, the First Circuit Court of Appeals (the federal appeals court seated in Boston), granted an expected boost to those lawsuits when it affirmed a $1.5-million jury verdict in favor of a worker whose fingers were injured while using a Ryobi BTS-15 table saw.
Even though SawStop does not presently manufacture a smaller saw like the Ryobi BTS, the First Circuit held that the jury could have concluded that it was feasible to incorporate SawStop technology into light-weight portable saws, as SawStop’s founder, Steve Gass, Ph.D., testified could be done.
The First Circuit also ruled that the plaintiff counsel’s urging the jury to “send a message,” although inadvisable, was a harmless error.
To read more about SawStop and preventable power saw accidents, click here, here and here.

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The Problem With Doctors Complaining About Medical Malpractice Law

law books medical malpractice.jpgToday I was reading a great blog post over at KevinMD.com. Much of it had me nodding in agreement with the physician-blogger who wrote it.
The blog post’s title was “Lawsuits Are More Of An Emotional Issue Than A Financial Issue” and the author made many sound points. As the author pointed out, it makes little sense to cap damages on doctors as part of an effort to lower medical malpractice insurance premiums when Medicare and Medicaid already price the cost of malpractice insurance into what they reimburse a doctor in a given state. Tort reform therefore constitutes a windfall for most doctors.
But then the blog post began to lose me. The author posed a hypothetical wherein an otherwise healthy thirty-six year old woman goes to the doctor’s office complaining of chest pains that have lasted two days. The doctor does not run every expensive diagnostic test in the book but concludes that the patient’s chest pains are unrelated to a blockage and is subsequently sued for malpractice when the patient is discharged and dies of a heart attack.
The hypothetical reminded me of one of the main problems with doctor-led discussion of medical malpractice law: they don’t understand medical malpractice law anymore than I do the ins-and-outs of their subspecialty.
In order to prove medical malpractice, a patient has to prove a whole heckuva lot more than, “There was some expensive test that could’ve been run that would’ve prevented my injury.”
The plaintiff has to show that the standard of care in the medical profession would have dictated that the doctor run the tests. In effect, the doctor is judged by what the average doctor would do, rather than by some superhuman standard.
There’s a world of difference between the two.
If more doctors understood the standard that applies to medical malpractice, there would probably be a lot fewer cries for tort reform.

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Could Your Doctor Use A Coach?

medical malpractice coach.jpgDr, Atul Gawande, one of the heroes of this blog, has a great new article in The New Yorker on the importance of coaches in improving performance.
As Dr. Gawande notes in his article, for the first several years after becoming a surgeon, the rate of complication in operations he performed declined — until he was beating national averages. But then his performance plateaued. His rate of complications continued to be exemplary but it was not falling anymore.
Then Dr. Gawande took a single lesson with a tennis coach that really improved his game. Soon afterward, Dr. Gawande was watching a tennis tournament and the camera panned to Rafael Nadel’s coach. A thought occurred to Dr. Gawande that has occurred to few others in medicine: If Rafael Nadel, who’s the best in the world at what he does, can benefit from coaching why can’t doctors and surgeons?
We tend to think doctors and surgeons don’t need coaching because they’ve already acquired all the knowledge and mastered all the techniques that are necessary to do their job. Very often, wrapped up in our whole notion of professionalism is the idea that a professional is someone who is done with education, someone who does not need to be taught anything further. But in certain fields, the most elite practitioners continue to receiving coaching and tutelage.
The dichotomy exists in music. Most instrumentalists don’t have coaches; they graduate from music school and are thought to have received all the coaching that they need. (Yitzhak Perlman is a rare and notable exception; he attributes much of his success to the coaching of his wife, a concert-level violinist herself). But vocalists differ: all of the world’s best vocalists have voice coaches. Rather than reflecting some underlying difference in the complexity of playing an instrument and singing, the differing attitudes toward coaching appears to be a historical contingency, a quirk.
Gawande convinced one of his former professors, Dr. Robert Osteen, to come out of retirement and coach him in the operating room. The first operation that Dr. Osteen coached – a thyroidectomy – was not one that Osteen had performed a lot in his career. But after the operation was over, Dr. Osteen had some great coaching tips for Dr. Gawande. Dr. Osteen noticed that the way Dr. Gawande had draped the patient, while perfect from the standpoint of maintaining a sterile environment, interfered with the movement of the surgical assistant and the resident. Dr. Osteen gave Gawande a list of other equally astute coaching tips.
Since taking on a coach, Dr. Gawande’s complication rate has gone down. The sample size is, at present, too small to declare the coaching to have been a statistically significant contributor to the decreased rate of complications, but Dr. Gawande believes that the coaching will prove to be important.
Dr. Gawande closes the article with an anecdote of one patient in the operating room who, prior to being put under anesthesia, asks who Dr. Osteen is. When Dr. Gawande explains to the patient that Osteen is in effect a coach, the patient gives him an uneasy look.
If your doctor ever tells you that she has a coach, perhaps you should count yourself lucky instead of sharing that patient’s unease.

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Another Hospital Death Due To “Alarm Fatigue”

alarm clock.jpgLast summer, a 60-year old man died at UMass Memorial Hospital. Apparently, for an hour before the man’s death, alarm bells were ringing indicating that the patient had a fast heart rate and potential breathing problems. But the alarms went unanswered.
The incident was only reported to state officials this spring and, according to The Boston Globe, the man’s death is being investigated as another case of “alarm fatigue.”
“Alarm fatigue” is a catchall term for a growing phenomenon in hospitals. It can describe situations where doctors and nurses shut off an incessantly ringing monitor to avoid its unpleasant sound, as well as situations where an alarm goes off audibly but it is either consciously or unconsciously ignored by health care providers who have become desensitized to its tone.

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