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Healthcare Improvement Via An Imperfect Solution

My professional organization recently asked me to participate in an interesting meeting at the state capitol talking about healthcare payment reform and how to improve the healthcare delivery system. This was sponsored by the state of Ohio and their Health Care Coverage and Quality Council.

It was the first meeting that I’ve been to where there were physicians, hospitals, insurance companies, and patients — all trying to put our heads together — present our points of view and try to come to consensus. Did we come to consensus on solutions? Not really, only that we will continue the conversation. There is no perfect solution that will make everyone happy, but we will strive to try to get to that best imperfect solution.

When is comes to healthcare delivery and healthcare payment, there was a lot of discussion on physicians and hospitals — meaning healthcare providers. The motivating factor in these cases uses terms like payment, lack of payment, incentives, bonuses, and penalties. Read more »

*This blog post was originally published at Doctor Anonymous*

Medical Apology Policies: A First Step In Medical Malpractice Reform?

An often overlooked tool in health care providers’ struggle with the malpractice crisis is the medical apology.  Two thirds of the states provide some form of protection for the medical apology (i.e., a simple apology is not admissible in court as an admission of culpability), and settlements reached post-apology are almost invariably lower than they would be otherwise.  (In the current environment, articles on medical apologies are popping up everywhere … even in the NY Times business section.)

It is important to note that an effective apology policy does not stop with the simple apology — I’m sorry that this happened to you — but must include a commitment to conduct a root cause analysis, to communicate the results to the patient and/or patient’s family, to implement systems improvements based on the results of the root cause analysis, and to offer a specific apology once the analysis is complete, and an offer of monetary compensation if the provider or its systems were at fault.  Of course, it’s easier to describe these steps than to actually carry them out. Read more »

*This blog post was originally published at HealthBlawg :: David Harlow's Health Care Law Blog*

Fear Of Medical Malpractice Turns Patients Into Hot Potatoes

I discussed my thoughts on risk and how all physicians theoretically carry the same risk, not because one field has more bad outcomes than another (which they obviously do) but because all physicians are trained to be experts in their field of training. This expert training should theoretically create no difference in risk between different subspecialties, as long as all physicians practice within their scope of practice.

In a follow up post, I discussed my experience with discharging patients from the emergency department and how this increased my risk exposure not because the science of the discharge is wrong, but rather because the perception of negligence is greater. I discussed the irrational standards of care that have been created out of a legal necessity to avoid litigation at all costs. An irrational standard that creates exponentially infinite costs that are bankrupting this country with little to no benefit to society as a whole. By expecting perfection on an individual basis, an expectation that will never be achieved, we are risking the implosion of affordable care for all. This is physician driven. Driven out of a fear of bad outcomes, which sets irrational standards, which creates negligence when those impossible standards cannot be achieved.

And a reader hit the nail on the head with this comment. I couldn’t have said it any better.

as a hospitalist, you are at the bottom of the funnel in the risk cascade.
If you continue to send pts home from the ER, by numbers alone, somebody is going to have a bad outcome and it’s all going to fall on you.
If you are willing to accept this, more power to you.

Problem X- undifferentiated, high risk, broad ddx type problem.
ie chest pain, dyspnea,abdominal pain,fever,headache, etc.
PMD busy in office, doesn’t want to deal with it.
sends pt to ER for “work-up”
-if something goes awry, “I knew he was sick, so I sent him to the ER”.
ER gets pt, checks a “pan-panel” and multiple imaging studies.
If anything turns up–admit to hospitalist.
If negative-”I don’t know what’s wrong, better admit.”
Hospitalist is now last one standing; if send pt home and adverse outcome= “Doc HH, you mean two physicians thought this pt was too sick to be at home, yet you sent them home?”

Safe move is to always admit–as you say, if adverse outcome in house, doesn’t seem as bad.
Now, you have a three way risk pie–and any specialists that were called to consult.

Not great medicine, but the risks are too high to hold it all by yourself

I can’t tell you how true this is. This is the basis of establishing irrational standards of care. The last bolded section says it all. You the patient, have become the legal hot potato in your journey through your illness. The rational being, if you put the responsibility of certain aspects of care on someone else, it is that someone else who will ultimately be responsible should a bad outcome occur.

The lawyers want you to believe this doesn’t exist. I can tell you categorically, 100%, without a doubt that patients are treated like hot potatoes, in one way or another, with just about every encounter they experience in American medicine.

I have a really hard time playing that game when I have experience and science on my side. At some point, physicians need to be held accountable for the irrational standards they have implemented out of fear and establish standards based on most likely plausible explanations, not the least likely explanation. Until we can do that for our profession, we are a big part of the problem for the financing of this country’s health care needs.

*This blog post was originally published at A Happy Hospitalist*

Happy Talk On Medical Malpractice Reform

What a welcome headline to see in the New York Times:

Obama Open to Reining in Medical Suits

In closed-door talks, Mr. Obama has been making the case that reducing malpractice lawsuits — a goal of many doctors and Republicans — can help drive down health care costs, and should be considered as part of any health care overhaul, according to lawmakers of both parties, as well as A.M.A. officials.

Wow. Yay. Crisis over, let’s move on to something else now.

Or maybe not.

Senator Max Baucus of Montana, the chairman of the Senate Finance Committee, is expected to outline his proposal for a health care overhaul this week, and aides said liability protection for doctors is not part of the plan.

So, I’m guessing that Obama’s talk about supporting med mal reform runs about as deep as his comitment to gay rights. Which is to say that he’ll put out some happy talk about it to appease a necessary constituency but won’t twist any arms or spend any capital in Congress to actually make it happen.

Worse, the semi-concrete proposals I have seen don’t look like they’ll offer much protection. Jon Cohn at TNR links to a summary of a few options:

Win-Win-Win on Malpractice Reform? – The Treatment

Disclosure-and-offer programs, in which health care providers disclose unanticipated outcomes of care to patients and make prompt offers of compensation. Patients do not waive their right to sue by accepting the offer, but reportedly, few go on to file lawsuits.

It’s hard to see this as reform at all. Disclosures are nothing new any more, and it’s always been good tactics to make an offer of compensation if there actually was substandard care. I doubt this will be embraced by the medical community, since when you do a disclosure you’re basically giving a potential plaintiff a roadmap for their future lawsuit. You’re basically relying on their sense of decency to avert a suit, and how that fact can be altered I cannot imagine. Another commonly cited option would be to:

create a federal “safe harbor,” retaining the current process of adjudication but insulating physicians from liability if they adhered to evidence-based medical practices. For example, legislation introduced by Senator Ron Wyden (D-OR) in February would create a rebuttable presumption that care was not negligent if the physician followed accepted clinical practice guidelines.

Sound great, but good luck applying that standard. Consider Whitecoat’s trial, in which the case seems to be hinging on the fact that the got the right diagnosis and performed the right treatment, but he may or may not have done so in a timely fashion. Presuming there even exist “guidelines” for a particular condition or presentation, there are so many technical variables in the execution of the care under these guidelines that I don’t see how juries could be expected to put this into practice.

Consider a child with meningococcemia. It’s a no-brainer that a child with this deadly infection needs to be given antibiotics as soon as possible to have a chance to survive, and there’s probably a guideline out there that makes reference to “urgent” or “timely” administration of antibiotics. So, if a kid comes into my ER with a fever and petechiae and I don’t get the Rocephin in for, say ninety minutes, was that timely enough? Or maybe the kid didn’t have the rash on presentation, but at hour three of an extended ER work-up the rash is noted and then antibiotics are given? Or maybe I was too rushed, stupid or negligent to notice the rash and didn’t give antibiotics till hour three. My point is that it’s meaningless to say that “guidelines were followed” when it’s impossible to write guidelines that cover every clinical circumstance. Worse, if implemented narrowly, the “safe harbor” would offer very very little protection, and if construed broadly, it would make it very difficult to actually distinguish negligent care from good care.

The reason I’m spending so much time on this point is that this proposal has had explicit endorsement from Obama himself, his Chief of Staff Rahm Emanuel and his physician brother, Ezekiel Emanuel, and key legislators like Senator Ron Wyden. It sounds great, but it too is just “Happy Talk.”

The last option cited is the classic option of moving med mal cases to specialized health care courts of some variety. I’ve always thought this had great potential, but there doesn’t seem to be any political support for it and it would certainly be fought tooth and nail by the trial lawyer’s association.

So it’s looking more and more like health care reform, if enacted at all, will probably not include any meaningful or effective national solution to the ongoing malpractice crisis. Plenty of “Happy Talk,” but no action and no solutions. Not that I really expected any, coming from a Democratic President and a Democratic Congress, but hope does spring eternal.

*This blog post was originally published at Movin' Meat*

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