The main subject of this chapter is a doctor-turned-malpractice lawyer; he stands out because most doctors hate malpractice suits. Even the lawyer says he hated them as a doctor. He said he was sued three times and two were nuisance suits with no basis, but the third was a case in which he made a medical error which led to the harm of his patient. He appeared to feel legitimately bad about it. The way he argued for malpractice exposed the virtues in the system: it does allow those who are harmed to come forward and receive some compensation which makes them better able to deal with their injury. Doctors strive to care for patients as best as possible, but of course there are instances where they make honest mistakes or are plain negligent, and that has to be addressed.
The downside of malpractice, as Gawande argues it, is that it is an essentially adversarial system which pits patients against doctors against insurance. He argues that it brings out the worst in all parties involved. He also quotes some stats:
- 98% of those harmed by a medical error never sue for malpractice (he does not say if this percentage opts out because it is an honest or unavoidable error, or if the error results in little harm)
- only two in one hundred "deserving patients" ever receive compensation for their injuries (he does not define why they are deserving - are all 100 people part of the 2% that simply sued, or are these patients who had legitimate malpractice harm done?)
Despite some gaps in the statistics, I agree with his general premise that only a small number of people actually harmed receive compensation, and a much larger number of doctors face high costs and frustration due to unnecessary nuisance malpractice suits. So it does seem a lose-lose in many ways.
One potential solution is to go the route of having a kind of malpractice claims system - doctors costs would be fixed and paid into this claims fund, and then any person who claims harm from malpractice simply submits their claim, it's audited, and they are given a set payout amount. This eliminates the enormous lottery ticket paydays and brings certainty to doctors. The downside is that it requires a large bureaucratic framework that is vaguely reminiscent of the current health insurance system, and we all know how that system's faring these days. There is a country currently using this system (I think Sweden?) and I plan to do some research about it in the future.
I know tort reform has been a topic of conversation in the health care debate. How big a factor is malpractice in health care costs, and do you think it frequently drives a wedge between doctors and patients? Are there any potential solutions?
First off - this was posted for Royce, who wrote the post prior to leaving for Argentina.
ReplyDeleteThe first thing that comes to mind for me is to have some sort of retribution option available for doctors when one of those frivolous suits is submitted. Is there a way to place this responsibility within our judicial system? Could we have a world where a judge is capable of determining when a suit is frivolous and absolutely unnecessary?
Outside of this possibility, I can't think of anything else at the moment. Do we think this is viable? Yay/Nay and why?
Unfortunately Scott I don't see how a retribution by doctors would be necessarily helpful... what are they going to sue the person for, money damages? How many people are going to have any meaningful $ amount to their name, versus the potential $ they would win off the doctor, to actually deter them from suing for malpractice in the first place? (And obviously their insurance wouldn't pay for the retribution - all that would do is raise insurance costs.)
ReplyDeleteI do like the second part of your idea however. I would prefer to see it done in the format listed in my 2nd to last paragraph of the post - a "malpractice system" would be the first level of screening for all these suits, and only after being vetted would a non-frivolous case make it to a court. All doctors would pay into the malpractice system and hopefully that would lend a measure of predictability to their malpractice costs.
Going all the way and paying fixed damages rather than "lottery ticket" damages sums would be even better. I don't know the argument against this?
Check the current health care fee schedules that exist for your argument against fixed damages; would the "malpractice system" not end up in the same boat as the current health care system?
ReplyDeleteHow would you prevent malpractice insurance companies from working the game in the same manner as the health care companies?
A valid point... I'd prefer to make it one single entity which is impartisanly run by the gov't. The idea here is that it actually represents cost savings. Yes, it would be another line item in the fee schedule, but ideally that line item would replace the malpractice insurance that doctors pay. If that line item's lower than the insurance, then it's a win.
ReplyDeleteI don't consider it malpractice insurance, so I don't imagine there would be malpractice insurance companies. If a screening system is evaluating the frivolity of cases and keeping a lot of doctors out of malpractice suits, doesn't that vastly reduce the cost of insurance?