Medical Malpractice Reform: Truth in Advertising Needed (Part TWO of three)

(Cross posted at Angry Bear and Clinician One)

ALSO, picked up by Business Insider, HERE

So in the first article, we discussed the historical implications of tort reform by examining Texas. The take home message being that tort reform failed to curb health care spending, and/or control costs (outside of malpractice premiums which did fall). Proponents of tort reform claim that by enacting aggressive tort reform measures, so called defensive medicine practices could be reigned in. Estimates about the costs of defensive medicine vary, and I have seen estimates in the literature as low as 4%, and as high as 14% of total health care spending. As with most things, the truth is probably somewhere in the middle, with a realistic estimate of 8-9% likely being the real integer. Recently, several studies have attempted to assess two of the most important questions about this topic:

A: Does a reduction in defensive medicine practices occur with the implementation of tort reform measures?

And

B: If it does cause a reduction in defensive medicine practices, will this affect patient outcomes or mortality?


Three more recent studies are likely the most pertinent, and we will briefly review those. To start with, Currie and MacLeod (go ahead, I had the Highlander flashback too) (2006) reviewed national data on childbirths to examine whether or not a cap on non economic damages would change the types of procedures performed at childbirth. They found that nationally, in those states with tort reform, the rate of C-Sections increased, and the rate of preventable complications secondary to childbirth increased by 6%. They also found, that a change in the “deep pockets rule”, actually decreased them. The paper is HERE: (gated article).

Then Sloan and Shadle in 2009 examined this same issue, using Medicare payments as an index. Their premise was, that if tort reform truly changed physician practices with regards to additional testing and/or defensive medicine, they would find a reduction in Medicare payment rates per beneficiary. They found that tort reform did not alter defensive medicine practices, with one exception. They did find that so called “indirect” reforms (mandatory periodic payments, Joint and Severability reform, and patient compensation funds) may reduce spending when applied to “any hospitalization”, but inexplicably, these indirect reforms did not affect any of the four diagnoses included in the study. Their paper is HERE:


There have been others, and the final one we will discuss is the NBER report done in 2009 by Darius Lakdawalla and Seth Seabury, Working Paper No. 15383. Found HERE: (gated article). Essentially, Lakdawalla and Seabury found that while targeted reforms may be effective, there could be an associated, and this is key… a 0.2% associated increase in mortality for every 10% reduction in medical malpractice liability costs. Why? Because defensive medicine practices DO FIND things. Any physician who has been in practice for any length of time, and who is being honest with you, will admit that they have done a test presuming it would be negative, and “perhaps the patient doesn’t need it”, only to be surprised by the results. We can argue whether or not 0.2% is a significant number, but even we look at the sickest 5% of Americans who are responsible for 47% of healthcare spending, than this group could have an increase of 30,000 deaths annually with a reduction of 10% spending on medical malpractice. I am not going to pass moral judgment on this fact. I will leave that up to the reader. The reason I bring this up, is that this is an important, and poignant discussion, but we need to be honest about the data that is out there now. Let’s have a discussion, but let it be an honest, and fact based one.

I tend to think that the Sloan and Shadle findings are important in the fact that I don’t think that physician practices are going to “magically” change overnight. The Texas evidence from the last article, would suggest that testing expenditures may actually increase. Yet, in the face of overwhelming evidence, proponents continue to cling to a disproven ideology regarding direct malpractice cost containment, IE; Non economic caps.

Medical Malpractice Reform: Truth in Advertising Needed

PART ONE OF THREE:

(Crossposted at Angry Bear)

Medical malpractice liability reform (Tort Reform) has been a hotly contested item for years, as the GOP, with physician support, has continued to market this as a health reform measure that can contain costs.

I think to start, we need to examine results in states where tort reform has already been tried. We need look no further than Texas.

Politicians tried to claim that Texas was a success, Rep Bachmann stated ““The state of Texas did a wonderful job of lawsuit reform and actually saw medical costs come down. We know it works.” Others have touted the Texas experiment as a success..but empiric data is a powerful thing, and as we will see, contradicts this sentiment.

In 2003, they passed the most aggressive tort reform measures in the country by placing a 250,000 cap on malpractice awards. It is true that this reform, after 2003, lowered malpractice premiums. But malpractice settlements and awards have dropped even farther than premiums, suggesting that the main benefactors so far, have been insurance companies. (See Table 1).

Also, the same report found that Medicare spending per patient had doubled between 2003 and 2007, in contrast to the decline in Medicare spending that was noted prior to the laws enactment. (See Table 2)

Additionally, one of the strongest arguments that tort reform supporters claim is a reduction in “defensive” medicine expenditures, or unnecessary testing… unfortunately, between 2003 and 2007 testing expenditures per Medicare enrollee grew at 50% greater than the national average…

They also found that Texas has the highest rate of uninsured patients in the country, both prior to the law, and accelerating after the law was passed.

The additional physician presence has only increased because of an increasing population as well, and when it was analyzed, there was only an increase of 0.4 physicians per capita after the law was passed.

These tables and data were all obtained and detailed in this study HERE, and there is much more information at the link. HERE

The short version is that medical malpractice reform should be a topic for discussion, but we need to be honest about this. In this article we reviewed what actually happened in Texas after the most aggressive tort reform measures were created. Costs (outside of settlements, payments, and premiums did NOT go down), and healthcare spending was at best unaffected, and may have even increased.

The next article will focus on the effects of reducing defensive medicine practices on patient mortality. The final article will focus on the association between medical malpractice premiums and healthcare spending.