Stanley Feld M.D.,FACP,MACE
President Obama, you have not discussed the need for medical malpractice reform. Without medical malpractice reform you will not be able to reduce the cost of healthcare and increase the quality of medical care. It will be difficult because malpractice reform goes against the vested interest of some of your major supporters, plaintiffs’ malpractice attorneys.
There is at least one trillion dollars of waste in our $2.3 trillion dollar healthcare system. One hundred fifty million dollars ($150 million dollars) is wasted on excessive administrative costs by the healthcare insurance industry. The remainder is generated by the practice of defensive medicine and cost of malpractice insurance.
“Much of this waste is generated or justified by the fear of legal consequences that infects almost every health care encounter. The legal system terrorizes doctors. Fear of possible claims leads medical professionals to squander billions in unnecessary tests and procedures.
Physicians and nurses are afraid to speak candidly to patients about errors. They try to explain the risk reward ratio of treatments for fear of assuming legal liability. The result is the practice of defensive medicine and over testing to cover every possible contingency. This legal anxiety is also corrosive to the therapeutic magic of the physician patient relationship.
It would be relatively easy to create new rules that would provide a reliable system of justice for patients harmed by medical treatments and procedures without encouraging costly litigation. If a new system was in place it would decrease the costs of defensive medicine significantly. It would encourage physicians use of clinical judgment rather than expensive tests and improve the physician patient relationship.
Everyone makes mistakes in every walk of life. The legal liability threat could generate further unnecessary errors. Physicians, nurses and hospitals are advised not to offer explanations about a mistake. Sometimes errors are concealed to avoid a legal ordeal. The hidden error could be compounded by additional mistakes.
“Even in ordinary daily encounters, an invisible wall separates doctors from their patients. As one pediatrician told me, “You wouldn’t want to say something off the cuff that might be used against you.”
There are cost multipliers created as mistrust accelerates between the patients and physicians. You would like physicians to adopt electronic medical records. Some physicians avoid using EMRs because the information could be misinterpreted and used against them. There is an increasing use of second opinions. Every examination requires an observer for the examination to avoid legal liability. Every problem requires multiple laboratory tests to rule out something that might have been missed. An example is a CAT in the Emergency Room for even the slightest head trauma.
“Medical cases are now decided jury by jury, without consistent application of medical standards. According to a 2006 study in the New England Journal of Medicine, around 25 percent of cases where there was no identifiable error resulted in malpractice payments.
“Nor is the system effective for injured patients — according to the same study, 54 cents of every dollar paid in malpractice cases goes to administrative expenses like lawyers, experts and courts.”
These are the major tort reform issues. They must be addressed to decrease wasteful expenditures in the healthcare system. Malpractice lawsuits are a growth industry for defense attorneys, a burden to physicians having to defend themselves and a significant cost to the healthcare system. Malpractice reform is essential to any meaningful healthcare reform. President Obama, I think you know it. The question again is will to take the correct route to reform the malpractice tort system.