March 07--I have to hand it to the President, he's a great politician. Despite the fact that he has spoken on the subject many times, I have absolutely no idea where he stands on the medical malpractice issue. His comments swing 180 degrees and back again so often your head would spin if you really tried to get the real message. Supposedly as of February, President Obama was "launching a drive to overhaul state medical malpractice laws." (Associated Press in an article titled, "Obama starts drive for medical malpractice reforms.")
Come along with me for a second on the President's malpractice roller-coaster. When he was campaigning for President, Senator McCain accused him of never voting against his party on any issues. Senator Obama corrected him and stated that he supported tort reform which had always been squashed by the Democratic Party. About 6 months into his Presidency, he then told the American Medical Association that he supported medical malpractice reform, just not caps on lawyers incomes (oops, I mean caps on non-economic damages in malpractice cases). Just 2 months later, the President went on national TV to calm down the 80% of Americans that were demonstrating at town hall meetings because they were astutely afraid of the health care bills being discussed in DC. He poked fun at the idea that the Republicans thought malpractice reform would save money, but he granted an "olive branch of research" into its impact on health care costs. He then signed a bill into law that would best be called "The Medical Malpractice Attorney Stimulus Package of 2010." In the law, malpractice reform is absent and lawyer's incomes are protected. There are even penalties to States that cap non-economic damages given in a medical malpractice case.
Obamacare in every way makes medical malpractice worse and sets up an impossible situation for physicians. These are just facts my friends no matter what side of the aisle you are on. Under Obamacare, doctors will be required to limit tests and treatments based on protocols set forth by the HHS (ie, the government). Physicians will be penalized financially for deviating from the protocols and they can actually be removed from "approved plans" by the HHS. Hospitals and ACO's (accountable care organizations) will be penalized for over-utilization of services, treatments, and tests as defined by the HHS. Despite these clinical hand-cuffs, no added protection is given.
We know for a fact that doctors order way to many tests in the US. The politicians lead you to believe that they do so for personal financial gain. They ignored the fact that most of the tests doctors order are done at hospitals where physicians have no financial interest. The true cost of "defensive medicine" is unknown, but is estimated in the $250-500 billion range, PER YEAR! The American Association of Orthopedic Surgeons just released a study on February 16 where they found that almost 20% of the imaging tests ordered by orthopedic surgeons were for defensive purposes. (This actually equated to 35% of Medicare imaging costs as orthopedic surgeons order expensive MRI's.) The longer the doctor had been practicing, the more likely they performed defensive medicine. This seems counterintuitive as the more experienced doctor should know when tests are unnecessary. However, the longer in practice, the more likely a physician has been subject to a frivolous lawsuit. I promise you that 100% of physicians get more defensive in practice after a frivolous lawsuit.
Under Obamacare, we know exactly what will happen because we can see what has happened in Great Britain (and even Massachusetts). There is delay in care, a longer wait time to see doctors, and limits on testing. Delay occurs on purpose in Great Britain. While some people may suffer, it saves the system money. Unlike in Great Britain, US patients can sue when they have a bad outcome no matter what the cause. Let's use CT scans of the brain for example in patients with headaches. I was taught in training that for every 1000 CT scans of the brain performed in emergency rooms (ER) for patients with a headache, provided they have a normal exam, only 1 will be abnormal. Yet 100% of the time in the US these patients get a CT scan while in Great Britain they do not. Let's say for argument sake that CT scans cost an average of $1000, we waste $999,000 for every $1,000,000 spent on CT scans in the ER. Obamacare didn't address this problem. Great cost savings law! Without malpractice reform, doctors and ACO's will always lose even if they follow protocols. Do you see the irreconcilable problem?
Which of the President's positions should I believe? Does he believe in malpractice reform or does he believe it's just Republican folly? Since he has stated both positions on the record, I would be a fool to believe that he really is "launching a drive to overhaul state malpractice reform" because he truly believes in reform. Could there be an ulterior motive? Let's examine why the lawyer President might be "pushing" malpractice reform against lawyers when reform has always died on the political vine due to the Democratic Party of which he is a member. Maybe he has had an awakening, he has listened to doctors for the first time, and he understands the bind they are in. (Probably not.) Maybe he realizes the enormous savings in a system where doctors don't perform defensive medicine. (Possibly.) Maybe he is just saying this to quiet down those in opposition to Obamacare who are in favor of real malpractice reform. (It's possible since everyone believes the longer he delays repeal of the law, the more he has time to implement parts of the law, and the harder it is to remove its tentacles from society in the future.)
I have another idea. Is it possible that the President is actually spearheading malpractice reform to help lawyers? Think about it. I told you that Obamacare requires all doctors and hospitals to follow protocols set forth by the Government. Initially, these doctors and hospitals will be independent and malpractice cases will skyrocket as poor outcomes occur while following Government protocols. In the end, the White House wants doctors to be employees of the state or large hospital based institutions in a completely socialized system. Medical malpractice does not exist in socialized systems. Even now in the US it's essentially impossible to sue the Government and it is difficult to sue a large hospital system. The bigger the system, the harder the lawsuit. Could it be that the President foresees this and is going to recommend state systems in which lawsuits against doctors who follow the HHS protocols still occur?
As I have stated over and over, I am not against medical malpractice at all. However, the current system is set up to reward the lawyers and not to punish the few doctors who cause true harm. We know for a fact that over 80% of malpractice cases reviewed by independent panels find nothing wrong with the care. However, because of how the system is set up for the lawyers, doctors settle in 80% of all cases. Doctors will continue to perform hundreds of billions of dollars in unnecessary tests in the US even under Obamacare without tort reform. This will force some doctors to retire, it will force most into an institution, and will find others losing their ability to practice if they resist the HHS protocols. As I tell my malpractice attorney patients, something's got to give unless they figure out a way to sue the Government. Maybe President Obama is about to show them how. Sounds radical and "conspiracy theory," doesn't it? Well, so did socialized medicine in the US being forced down the throats of the American people despite overwhelming opposition.
The opinions expressed by Dr. English are his own and do not reflect the opinions of any affiliated institutions.
Dr. Jeffrey B. English is a Board Certified Neurologist with sub-specialty training in Clinical Neurophysiology. He is in private practice in Atlanta, Georgia. Dr. English is the Clinical Research Director at the Multiple Sclerosis Center of Atlanta, a non-profit organization for the treatment of patients with multiple sclerosis. He helped develop and helps run the Center. He is also a national speaker on multiple sclerosis and on the economics of health care delivery. Author Dr. Jeffrey English writes the HC On Call series exclusively for Basil & Spice. Visit his Writer's Page.
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