Joust The Facts

If Obama Were Serious About Reforming Health Care ...

... he'd listen to and embrace Republican ideas, such as those elaborated by Newt Gingrich and John Goodman in the Wall Street Journal in Wednesday's edition.  Ideas like, for example, true doctor-friendly (as opposed to lawyer friendly) tort reform, health insurance portability, and avoiding drastic Medicare cuts from a system that already underpays providers.  The truth, unfortunately, is that a simple, effective, and popular idea like tort reform never would see the light of day, given the ownership of the Democratic Party by the trial bar.

After the Supreme Court's 1976 Buckley v. Valeo decision affirmed the constitutionality of dollar limits on campaign donations to candidates, plaintiffs attorneys realized they could work within the new rules to increase their political influence. Three years later, the plaintiffs bar set up the Attorneys Congressional Campaign Trust. Its successor organizations have given $33 million in political action committee (PAC) donations to federal campaigns since 1990, according to data gathered by the Center for Responsive Politics (CRP).

These PAC contributions only scratch the surface. Contribution limits favor those best able to "bundle" donations. The plaintiffs bar, with thousands of well-heeled members willing to write $2,000 checks, is well-situated to play this game. While corporations' interests are dispersed among hosts of competing tax and regulatory concerns, the trial lawyers have a focused cause: maintaining the lawsuit industry and expanding legal liability rules that lead to more lawsuits.

Since 1990, the sums donated to federal political candidates by lawyers—excluding lobbyists—exceed $1 billion, according to CRP. Lawyers as a group have given more to federal candidates than any other industry or profession. Their ability to keep tort reform out of the health-care reform bills is unsurprising: Congressional campaign contributions by lawyers in the last election cycle were about $25 million more than the combined total of political donations from doctors, pharmaceutical companies, HMOs, hospitals and nursing homes.

By the way, it's "Democrats" and not "politicians" since 70-80% of lawyer and law firm donations are directed to Democrats.

It's actually simpler than that.  If Mr. Obama were really serious about health care, he'd have invited the Republicans to the table to help craft the legislation before the Obama-Reid-Pelosi "Dance of 1000 Fools" of the last 9 months.  Instead, he spoke only with Democrats, stated - wrongly - that only his side had any ideas on how to solve the problems, and tried to force a major restructuring of one-seventh of the US economy through on a party-line vote.  But now that Senator 41 has taken his seat, and with continued disagreements even among Democrats, that dog won't hunt.  He talks a good game,

“I’m willing to move off of some of the preferences of my party in order to meet them halfway, but there’s got to be some give from their side as well,” Obama said during a surprise visit to the White House briefing room following a meeting with congressional leaders from both parties. “I also won’t hesitate to condemn what I consider to be obstinacy,” he warned.

but he could have magnanimously reined in his Congressional leadership and opted for this sort of give and take when he had 60 in the Senate, and didn't.  Now it simply comes off as oleaginous, too clever by half.*

*too clever by half: to be too confident of your own intelligence in a way that annoys other people

Money And Influence

Yesterday the SCOTUS ruled, in Citizens United v. FEC, that Congress should not have limited the freedom of political speech as they did with the McCain-Feingold campaign finance law.

The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy...

President Obama jumped at the decision to rail against the influence of big corporations that this would unleash

President Obama called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

We can talk about free speech vs. the detrimental influence of large independent expenditures by unions and corporations, if you like.  But Drew M.  handles the discussion nicely over at Ace of Spades today, and Justice Kennedy's majority opinion (pdf) is worthy as well.  From the former:

Sure the Constitution protects ‘the press’ but as bloggers of today and pamphleteers of the founding era know, you don’t need to be a corporation to be ‘the press’. Clearly corporate media isn’t a necessary condition of ‘the press’ so why should media corporations be afforded special protections for 1st Amendment activities others aren’t?

There's also the inconvenient fact that corporations are nothing more than an aggregation of individuals (investors, workers, managers, etc). Each of these people have first amendment speech rights. Why exactly should those rights be destroyed simply because they are exercising them collectively instead of individually? (hint: they shouldn't)

There’s simply no merit to the left’s critique and they won’t like where it leads. The beauty of being a lefty is that every case is different and the argument you use one day, isn’t applicable to similar circumstances the next day if it doesn’t help you.

From the latter (pp 3-4):

Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.

Read that once more, and think about it.  Do you really want the government deciding which entities can have their voices heard, and which cannot?

Besides which, there is a current example of a large and influential block of individuals exercising political speech through their donations that must be very familiar to Mr. Obama and the Democrats, and which was completely unaffected by the restrictions of McCain-Feingold in shaping policy.  This group of individuals was considered at every turn by those crafting the health care legislation.  Their influence likely cost Mr. Obama the chance to ever have "reform."  Their influence was so broad and so deep that the Senate bill that passed catered to their whim.  The provisions that catered to them was the reason why most physicians were against the bill.  It's a large reason why it was so difficult to manage the costs of reform.

I think we know that I'm referring to the trial lawyers, the tort bar.  The unwillingness to cross that bridge is the reason that Mr. Obama and the congressional Democrats can't crow about passing a reform bill, because enough physicians would likelly have supported any bill that had real tort reform.  But so scared were Democrats of losing the support of the deep pockets that finance their campaigns that Howard Dean famously admitted that they couldn't and wouldn't be touched.

So whine all you want about the "evil" of corporations' free speech rights under this ruling.  Then tell me that it's okay that some pigs are more equal than others.

What About The "Promise" Of Tort Reform?

From President Obama's speech to Congress on health care reform:

Now, finally, many in this chamber -- particularly on the Republican side of the aisle -- have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. (Applause.) Now -- there you go. There you go. Now, I don't believe malpractice reform is a silver bullet, but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. (Applause.) So I'm proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. (Applause.) I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today. (Applause.)

That was, at the time, all theater as well.  He doesn't really commit to anything except "moving forward on a range of ideas."  Everyone watching, everyone in the room, knew he had no intention of allowing true tort reform, the kind that's been shown to work in, for example, Texas, including caps on non-economic damages.  The wording was designed for people to feel like he understood the problem and addressed the issue, but not to commit to actually doing anything about it.  Sure enough, this is exactly what we have in the House bill.

The health care bill recently unveiled by Speaker Nancy Pelosi is over 1,900 pages for a reason. It is much easier to dispense goodies to favored interest groups if they are surrounded by a lot of legislative legalese. For example, check out this juicy morsel to the trial lawyers (page 1431-1433 of the bill):

Section 2531, entitled “Medical Liability Alternatives,” establishes an incentive program for states to adopt and implement alternatives to medical liability litigation. [But]…… a state is not eligible for the incentive payments if that state puts a law on the books that limits attorneys’ fees or imposes caps on damages.

Must.  Help.  Poor.  Attorneys.

10/31/09 1350: A good line from Ed Morrissey:

No one should be the least bit surprised that the same Democratic Party that takes in over 80% of political donations from trial lawyers has attempted to kneecap tort-reform pilot programs in ObamaCare ... Maybe they should just call themselves the Ambulance Chasers Party and be done with it.

A Fellow New Hampshire Physician Looks South

Dr. Kevin Pho, an internist in Nashua, NH and blogger at KevinMD.com, has an opinion piece published at CNN of all places (CNN?!!) adding to information that I've previously noted.  His point in this piece is that a physician shortage, which is already present in some specialties, particularly in some geographic areas (due to a state's tort laws), will likely be exacerbated in internal medicine by the proposed health reform.  For evidence he has a look at the state to his (and my) south.

Today, 97 percent of Massachusetts residents have health insurance, the highest in the country. But less publicized are the unintended consequences that the influx of half a million newly insured patients has had on an unprepared primary care system.

The Massachusetts Medical Society reported that the average wait time for a new patient looking for a primary care doctor ranged from 36 to 50 days, with almost half of internal medicine physicians closing their doors entirely to new patients. And when you consider that Massachusetts already has the highest concentration of doctors nationwide, wait times will likely be worse in other, less physician-abundant parts of the country, should universal coverage be enacted federally...

Massachusetts is finding out just how difficult it is to fiscally maintain universal coverage. In part due to soaring health costs, the state Legislature has proposed reducing health benefits for 30,000 legal immigrants and cutting funding to inner-city hospitals like Boston Medical Center, which, according to the Boston Globe, may "force it to slash programs and jeopardize care for thousands of poverty-stricken families."

It's important to remember that the pipeline of physicians is like a huge submarine.  It doesn't turn on a dime.  And so if there is a sudden and dramatic increase in patient volume or an increased need in a certain specialty it will take a minimum of 10 years to begin to fill the deficit.  Dr. Pho credits the draw of "more lucrative" specialty practice for nurse practitioners, physician assistants and MD's for worsening the shortage, but many of those "more lucrative" specialties have or anticipate their own shortages.

It's said that the definition of insanity is to repeatedly perform the same action and expect a different result.  President Obama can have a look at Massachusetts, and also Maine.  Maybe he thinks that if the federal government takes control of the situation for the entire nation the physicians, hospitals and other providers will be forced to accept the dictates handed down.  Perhaps, but then we're back to the underlying question.  Where will the needed physicians come from?

Hillary To The Rescue

Senators Hillary Clinton and Barack Obama published an article in the New England Journal of Medicine last week, pushing their proposal for medical malpractice reform - the National Medical Error Disclosure and Compensation (MEDiC) Bill (S. 1784).  The solution, according to the two Senators, is ... doctors should own up to doing something wrong, and compensate the patient.  Interestingly they still want to make turning to a lawsuit without caps on awards available if the negotiation doesn't satisfy the patient.

Instead of focusing on the few areas of intense disagreement, such as the possibility of mandating caps on the financial damages awarded to patients, we believe that the discussion should center on a more fundamental issue: the need to improve patient safety.

They are right in that the emphasis has to be on patient safety and eliminating avoidable medical errors.  But, to my knowledge, despite the fact there are a number of states with hard caps on punitive damages and pain and suffering awards there have not been either increases in medical errors or large numbers of patients complaining.  The complaints, on the contrary, come from the lawyers.

Studies show that the most important factor in people's decisions to file lawsuits is not negligence, but ineffective communication between patients and providers.⁴ Malpractice suits often result when an unexpected adverse outcome is met with a lack of empathy from physicians and a perceived or actual withholding of essential information.⁴ Stemming the causes of medical errors requires disclosure and analysis, which create tension in the current liability climate.

The current tort system does not promote open communication to improve patient safety. On the contrary, it jeopardizes patient safety by creating an intimidating liability environment. Studies consistently show that health care providers are understandably reticent about discussing errors, because they believe that they have no appropriate assurance of legal protection.⁵ This reticence, in turn, impedes systemic and programmatic efforts to prevent medical errors.

All of this is true. 

Our proposed MEDiC program provides grant money and technical assistance to doctors, hospitals, insurers, and health care systems to implement programs for disclosure and compensation. The MEDiC model promotes the confidential disclosure to patients of medical errors in an effort to improve patient-safety systems. At the time of disclosure, compensation for the patient or family would be negotiated, and procedures would be implemented to prevent a recurrence of the problem that led to the patient's injury.

So their solution is not to change the tort system, but to encourage doctors to be more open with their mistakes.  I'm not sure I see how that helps the physician, though it would likely would help to improve patient safety.

The terms of negotiation for compensation ensure confidentiality, protection for any disclosure made by a health care provider to the patient in the confines of the MEDiC program, and a patient's right to seek legal counsel; they also allow for the use of a neutral third-party mediator to facilitate the negotiation. Any apology offered by a health care provider during negotiations shall be kept confidential and could not be used in any subsequent legal proceedings as an admission of guilt if those negotiations ended without mutually acceptable compensation.

There is a claim that physicians would be protected in these disclosures, but I don't see how.  The patient, after hearing the disclosure, is free to leave the program and sue - without caps - in standard fashion, but now with more information.  This is not very encouraging, again from the physician's standpoint.

The biggest problem with this proposal is the example that Sens. Clinton and Obama choose to demonstrate its effectiveness - a program at the University of Michigan hospitals.

In 2002, the University of Michigan Health System launched a program with three components: acknowledge cases in which a patient was hurt because of medical error and compensate these patients quickly and fairly; aggressively defend cases that the hospital considers to be without merit; and study all adverse events to determine how procedures could be improved. Before August 2001, the organization had approximately 260 claims and lawsuits pending at any given time. As of August 2005, the number had dropped to 114 (see graph). The average time from the filing of a claim to its resolution was reduced from approximately 21 months to less than 10 months. Annual litigation costs dropped from about $3 million to $1 million.

What is wrong with that?  Everything sounds peachy.  The problem is that Michigan also has damage caps, which may well be a factor in the patient's willingness to accept a negotiated settlement.

Damage Caps

In a medical malpractice action, there is a limit on the amount recoverable for non-economic damages, including pain and suffering, inconvenience, physical impairment, and physical disfigurement. The maximum for all plaintiffs, resulting from the negligence of all defendants, was set at $280,000 in 1993, except in instances of paralysis due to brain or spinal cord injury, impairment of cognitive capacity, or loss of reproductive ability, in which case the limit was $500,000. Mich. Comp. Laws Ann. § 600.1483 (West 1996). These amounts increase annually with the cost of living, Id., and are $349,700 and $624,500 in 2002. Any jury award in excess of these amounts must be reduced by the court. Mich. Comp. Laws Ann. § 600.6304(5) (West 2000).

The other example given is a VA hospital system.  I've worked in VA hospitals during residency.  VA hospitals are not at all comparable to public or private hospitals.

While the desire to reduce medical errors is admirable and desireable, and "systems" to reduce errors may be helpful, one of the best ways to do this is to make sure that the doctors and nurses themselves are superb, both in their makeup and their training.  That requires making medicine a highly desireable occupation again.   It still is, but not as much as it was. There are many things that are needed to do that, only one of which is tort reform.  On that count this bill doesn't do it.

Malpractice Reform Results

There are, to be sure, opponents of malpractice reforms, specifically those that cap punitive and non-economic damage awards.  And their arguments are certainly to be considered.  But when patients have a greater right to sue than their right to see a physician in the first place then the system is out of balance.  Areas where torts are epidemic often see the flight of physicians to friendlier locales.  Texas was one of those states, but three years after malpractice reforms were initiated the exodus has become an influx, as Newt Gingrich and orthopaedic surgeon John Gill show today in the Wall Street Journal.

DALLAS--The Senate is once again taking up the issue of medical justice reform. If senators want to expand access to health care by increasing the number of physicians and lowering costs, they need to look at Texas.

In the summer of 2003 the Texas Legislature enacted important medical litigation reform. A voter-approved constitutional amendment, Proposition 12, followed later that year to solidify the changes. As a result, physicians are returning to the state, particularly in underserved specialties and counties. Insurance premiums to protect against frivolous lawsuits have declined dramatically, with the state's largest carrier reporting declines up to 22% and other carriers reducing premiums by an average of 13%. The number of lawsuits filed against doctors has been cut almost in half.

Prior to the successful reform effort, personal injury lawyers had put Texas doctors on the run. According to the Texas Department of Insurance, the frequency of claims was increasing at a rate of 4.6% annually--between 1996 and 2000 alone, one out of four doctors was sued.

These surging legal and insurance bills reduced patient access to health care. Texas fell to 48th out of 50 in physician manpower. There were 152 medical doctors per 100,000 citizens, well below the U.S. average of 196. Some 158 counties had no obstetrician. Good, competent doctors were closing their doors, unable to afford the cost of insurance.

Have the limits worked, at least as far as the health care system?  Take a look.

So what has happened since September of 2003, when the new law went into effect? After years of losing doctors, Texas has added nearly 4,000 since passage of Proposition 12, including 127 orthopedic surgeons, almost 300 anesthesiologists, over 200 emergency room physicians, 146 new obstetricians, 58 neurologists and 24 neurosurgeons. The Texas Medical Board is anticipating some 4,000 applicants for new physician licenses this year alone--double last year's numbers, and 30% more than the greatest growth year ever.

California's very similar law has been on the books since 1975, and I don't know that medical care in that state is worse because of it.  Other states without such limits should take note, including Massachusetts.  One of those new physicians in Texas formerly worked in a general surgery practice in my office building, and was one of the top surgeons in our area.  We'll miss him here, but I certainly understand.

5/4/06 1645: Related - The Boston Globe is reporting that an increasing percentage of physicians are declining to participate with managed care plans.

NEW YORK --The proportion of physicians who don't participate in managed care plans is rising in a development that may signal a trend toward higher patient costs and less access to doctors, a study to be released on Thursday said.

The proportion of U.S. doctors without managed care contracts rose to 11.5 percent in 2004-05, up from 9.2 percent in 2000-01 and 8.6 percent in 1998-99, according to the Center for Studying Health System Change, a nonpartisan research group in Washington, D.C.

[...]

Dr. Ann S. O'Malley, a senior researcher at the Center and an author of the study, said doctors often choose to opt out of networks because of low payment and paperwork hassles.

In my experience it's the low payments.  If your office is busy, then the business-smart thing to do is decline the lowest paying managed care plan if you can still fill your office.  You don't "negotiate" with managed care plans so much as you accept the terms they've dictated to you.  So you're only choice is, do you accept them or not.   "You've got a nice little practice there, Doctor.  It'd be a shame if anything was to happen to it."

These MCP's are essentially middlemen, creating paperwork hassles for the office, taking a cut of the fees in order to process that paperwork, and dictating lower fees for providers, all in the guise of "cost containment."  And they're often deceptive.  There is one local rather large HMO with whom my practice declined to participate about 3 years ago.  We tried to take another look at them this year, thinking that perhaps they'd straightened out some of the problems, and upon contacting them we were told that we couldn't see the fee schedule until we'd enrolled with them.  That is, we can't find out how much they'd pay for various procedures until we had already agreed to accept said fees.  We passed.

Massachusetts State Government At Work

From the AAOS daily physician newsletter, via the Boston Herald:

A commission set up by the Massachusetts state legislature more than a year ago to examine whether the state should create a medical liability court has never once held a meeting, the Boston Herald reported. The 12-member commission, consisting of state senators, representatives and individuals appointed by the governor, was required to submit a report on its findings by Feb. 1, 2005. A task force created at the same time to look into medical liability issues also never convened.

Why would you bother meeting?  It's not like there's a malpractice insurance problem in the state.  It's not like physicians are leaving in droves.  Oh, wait ... oops, my bad.

State malpractice grade bodes ill: D- may speed doc shortage

The alarming shortage of doctors in the state could spiral into a “crisis” now that Massachusetts has been judged one of the worst states in the nation for malpractice rates, worried physicians say.

"We’re trying to sound the alarms,” Dr. Alan Harvey, president of the Massachusetts Medical Society, said yesterday. “It’s very much a concern for physicians in Massachusetts and it’s not improving.”

He spoke after the state earned a D-minus for its medical liability environment from the American College of Emergency Physicians.

Massachusetts doctors say medical malpractice insurance rates are through the roof, with obstetricians shelling out $97,000 a year. Medical liability insurance in Massachusetts spiked more than 50 percent from 2001 to 2004.

Mississippi Torts

An op-ed in the Wall Street Journal today by Mississippi State Senator Charlie Ross reviews that states history as a focus of 'jackpot justice', and the changes starting to take place since the passage of tort reform last year.

Prior to the legislation, Mississippi was known as the "jackpot justice capital of America." The American Tort Reform Association had labeled certain jurisdictions "judicial hellholes." A survey of more than 1,200 senior in-house counsels for the U.S. Chamber Commerce ranked Mississippi 50th in virtually every category of judicial system nationwide. Insurance companies were fleeing the state. Others were refusing to write new policies. The medical field was particularly strained: Liability insurance was in many cases unaffordable, and in some cases unavailable.

One year later, the story is very different. Mass Mutual Insurance Group, St. Paul Travelers, World Insurance Co. and Equitable Life Insurance Co. are returning to Mississippi. State Farm Insurance eased its growth restrictions for homeowners' insurance and lowered its rates on property insurance.

The Medical Assurance Company of Mississippi, which writes 60% of the medical malpractice coverage for doctors in the state, had raised its rates 20% the year prior to the tort reform legislation. After its passage, MACM did not raise its rates at all. "Those people who said tort reform would not work and actively fought any civil justice reform," Mississippi Insurance Commissioner George Dale said. "I think this indicates they were wrong." MACM also recently announced an end to its moratorium on new business; it also just declared it will cut its rates for 2006.

What changes were made?

In many respects, the bill is considered model legislation. Among other provisions, it included venue reform (so trial lawyers cannot shop around for favorable courts) and caps on subjective noneconomic damages (such as pain and suffering).

States with poor legal climates for medicine find themselves with not enough doctors in certain high risk specialties.  For example, read this report by the AMA on the liability crisis:

The most troubling aspect of the current medical liability litigation system is its impact on patients. Unbridled lawsuits have turned some regions of our country—and in several cases entire states—into risky areas to be sick, because it is so risky to practice medicine.

Throughout 2004, the medical liability crisis only got worse. Access to health care is now seriously threatened in 20 states, up from 12 states in 2002.

One of the arguments against tort reform is "how are the poor, and those injured by negligence, going to obtain proper compensation?"  A better question, given the difficulty in even finding a qualified specialist in the higher-risk fields (neurosurgery, orthopaedic surgery, OB-GYN) in certain locales is, how are these individuals going to obtain proper healthcare?

I've seen the arguments about weeding out the bad doctors, the small percentage who are responsible for a large portion of all cases.  I agree.  Let's get rid of them.  But doing it requires action by state medical societies AND legislation that backs that action.  It can take a long time to even get a troubled physician off a hospital staff, never mind pulling their state license.  That has to be made easier.

Richard Posner argues against malpractice tort reform:

The real cost of malpractice liability is limited to the cost of the actual resources consumed by such liability, principally the time of lawyers and expert witnesses (roughly half the total amount awarded in judgments goes to pay lawyers and expert witnesses), unless defensive medicine is assumed to cost more than its benefits in improving treatment outcomes. The real benefit of malpractice liability is its effect if any in deterring medical negligence; reducing that benefit would impose a real cost.

This is grossly inaccurate in several ways.  First, Posner neglects to mention as a cost the removal of physicians from their work during the process.  For a lawsuit the physician-defendant may have to carve out weeks of uncompensated time during which no patients are cared for.  Second, he mischaracterizes defensive medicine as improving treatment outcomes.  Defensive medicine is, by definition, the performance of unnecessary tests and consultations.  Therefore it does indeed cost more than its benefits.  Finally, there is little evidence that it deters medical negligence.  What it does do is stimulate avoidance behavior.  Physicians avoid difficult, complex cases, and look to reduce liability exposure by, for instance, reducing emergency room exposure.  That certainly does not help the patient in the ER.

Mississippi's experience, early on to be sure, is that tort reform has tangible benefits.  We'll follow along with the 'jackpot justice' state to see if those at-risk specialists begin to return to the state.

Exhibit A For Malpractice Tort Reform

I just heard a story that is worth relating, and will be part of a series of posts over time that exhibit the silliness of some of the lawsuits with which physicians must deal.

A physician I know reviews applications for privileges at one of the institutions where I also have privileges.  A recent application by a general surgeon revealed a lawsuit over a laparoscopic cholecystectomy.  For lay people, that's removing the gall bladder through small incisions using fiberoptic video.  In any event, during the surgery one of the small instruments used to perform the procedure broke, and a piece came loose.  The physician tried to retrieve the piece laparoscopically to no avail.  He then made a slightly larger opening to work under direct vision, and located the piece, removing it uneventfully.  There were no ill effects for the patient, with the exception of one slightly larger scar, but still a scar smaller than it would have been with a traditional open cholecystectomy.  Immediately after the surgery he informed the family, reassured them that the piece had been retrieved and that their relative was fine.

He was sued.  For the life of me I have no idea why.  If anyone has a logical explanation why, please tell me.  Oh, and he won.