Better Health: Smart Health Commentary Better Health (TM): smart health commentary

Latest Posts

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*

Latest Interviews

IDEA Labs: Medical Students Take The Lead In Healthcare Innovation

It’s no secret that doctors are disappointed with the way that the U.S. healthcare system is evolving. Most feel helpless about improving their work conditions or solving technical problems in patient care. Fortunately one young medical student was undeterred by the mountain of disappointment carried by his senior clinician mentors…

Read more »

How To Be A Successful Patient: Young Doctors Offer Some Advice

I am proud to be a part of the American Resident Project an initiative that promotes the writing of medical students residents and new physicians as they explore ideas for transforming American health care delivery. I recently had the opportunity to interview three of the writing fellows about how to…

Read more »

See all interviews »

Latest Cartoon

See all cartoons »

Latest Book Reviews

Book Review: Is Empathy Learned By Faking It Till It’s Real?

I m often asked to do book reviews on my blog and I rarely agree to them. This is because it takes me a long time to read a book and then if I don t enjoy it I figure the author would rather me remain silent than publish my…

Read more »

The Spirit Of The Place: Samuel Shem’s New Book May Depress You

When I was in medical school I read Samuel Shem s House Of God as a right of passage. At the time I found it to be a cynical yet eerily accurate portrayal of the underbelly of academic medicine. I gained comfort from its gallows humor and it made me…

Read more »

Eat To Save Your Life: Another Half-True Diet Book

I am hesitant to review diet books because they are so often a tangled mess of fact and fiction. Teasing out their truth from falsehood is about as exhausting as delousing a long-haired elementary school student. However after being approached by the authors’ PR agency with the promise of a…

Read more »

See all book reviews »