Medical malpractice reform is one of the few health care policy issues where there is a real possibility of agreement between the White House and Congress. A common refrain is that the fear of lawsuits leads physicians to practice defensive medicine, ordering too many tests just to cover their behinds in case of a lawsuit. It drives up costs without creating benefits. There’s some truth to this argument, but it’s much overblown. First, the malpractice system isn’t going to go away entirely so I’m not sure the motivation will change that much. Second, unnecessary tests may continue but the explanation may shift, e.g., to patient preference or best practice. A much bigger impact on unnecessary tests will be had by shifting the payment system toward capitation.
Another issue –and to my mind it’s a bigger one– is that despite the risk of malpractice lawsuits the health system does a heck of a lot to create or at least tolerate situations that are dangerous for patients. An op-ed piece in today’s Boston Globe (A deadly information gap; Many doctors lack the motivation to communicate with each other) tells the story of a doctor and her lawyer sister who did their utmost to help their elderly mother navigate the health system and still found her near death due to lack of coordination. Their story is simultaneously extreme and typical. You probably have your own version:
In the hospital, after her heart attack, my mother’s diabetes doctors weren’t allowed to prescribe her medications or diet because she was on a cardiology unit. Despite good intentions, the hospital almost killed her by giving her 32 ounces of apple juice one day, causing her blood sugar to rise to a dangerous level. To compensate, they had to give her a lot of extra insulin, which caused her blood sugar to drop precipitously. At one point they had to resuscitate her because her blood sugar went so low. This happened because the diabetes doctors had almost no real-time way to communicate with the cardiology doctors. They needed a navigator — a knowledgeable intermediary — to make sense of the overall picture and connect the doctors to each other…
When my mother became stable enough to leave the ICU, she was transferred to a step-down unit only two doors away, but with a whole new medical team — doctors, nurses, aides, case managers. And every new clinician had to read the paper chart, or if unable to decipher it, “interview’’ my mother again. “She’s not able to tell me her history. . .’’ over and over again. Exasperated, my sister introduced us with, “Hi, this is my sister, she’s a doctor. And I’m a lawyer.’’
Patients should not need a doctor and a lawyer in the family in order to get appropriate medical care. My mother survived her near fatal illness because she had knowledgeable, relentless insiders to advocate and communicate for her.
The author is convinced that the health reform law with its introduction of Accountable Care Organizations will make everything right. I’m less sanguine. I say: go ahead and let malpractice reform happen, if only to take some of the focus off of extreme cases and get doctors to relax a bit. But let’s divert some or all of the savings to education and re-engineering of care processes to improve patient safety in order to prevent the emergence of situations that the malpractice system is meant to address.
The author, David E. Williams, is the co-founder of MedPharma Partners who writes regularly on the Health Business Blog.
