> Any law that limits the cases where patients can sue, or the amount of money they can collect, is likely to lower medical use in the hospital by less than the 5 percent they measured in their study.
The telling thing about laws to address malpractice liability is that they typically are focused on capping large verdicts. But such laws are illogical: generally, large verdicts will be awarded where a doctor screwed up and caused the most damage. Cases with large verdicts are the most meritorious ones, and the ones where limiting liability is least likely to eliminate over-testing that does not contribute to quality of care.
If states actually wanted to address the costs of defensive medicine, they would do something like create affirmative defenses for doctors who adhered to certain established testing protocols.
Large verdicts have been delivered where no or minimal injury was suffered.
As others have mentioned, John Edwards had great success as a lawyer suing over cerebral palsy, claiming that it was caused by actions during delivery. While possible, most cases are caused by other factors such as infections, IVF, or low birthweight.
At trial, you have a sympathetic plaintiff with large needs vs a "rich" doctor and hospital. They might have caused this, they have insurance. So you systematically get very large verdicts against defendants who are unlikely to have done anything wrong. Edwards was very good at theatrics and not good on science.
Trials that rely on science and math are not great to take to a jury. Even discussions here get emotional when you deal with subjects like appropriate risk analysis and tradeoffs. Saying that you have a formula to only fix defects that kill more than x people or cost less than y per life saved is a great way of losing at trial and getting destroyed in a thread. It's also how every company and government makes decisions around safety - where stop signs go, guardrails, drug approval, armor in tanks...
Getting tort law right is hard - you want true injuries to be compensated but discourage people that are looking for lottery tickets.
> Large verdicts have been delivered where no or minimal injury was suffered.
We live in a country of 300 million people. Every permutation of things that can happen has happened. But that doesn't mean that large verdicts "where no or minimal injury was suffered" happen often enough to account for a significant share of medical malpractice payouts.
There was a Harvard study that looked at this issue pretty systematically, and concluded that the idea of "systematically" "large verdicts against defendants who are unlikely to have done anything wrong" does not fit the data: http://archive.sph.harvard.edu/press-releases/2006-releases/.... Most importantly, claims are about as likely to get denied despite the presence of error as they are to get paid despite the absence of error. (So improving the accuracy of the system would not necessarily decease payouts.)
Is the monetary amount of payouts important at all for the issue at large?
The doctors/soon-to-be-doctors I've talked to/read aren't worried about the amount of money that leaves hospitals in malpractice payouts. They're worried that it's too easy to sue a doctor / hospital over arbitrary fabricated bullshit and win.
That's essentially Rayiner's point--focusing on large payouts is not an effective response to this concern.
In states with a cap on the maximum medmal claim, the cap often "saves" the defendant money in situations where docs/hospitals really did screw up badly. But that cap has not effect on small, frivolous lawsuits where the doc/hospital weren't at fault.
Consider what used to be the poster-boy for the lawyers blaming the insurance system here:
$6 million verdict that was still being fought in the courts many years later rather than simply paid.
Oops, the reality: Trial #1: The woman was determined to be 90% at fault for her baby's problems, the law here doesn't let you collect if you're found more than 50% at fault. Trial #2, this time filed in the name of the baby. Still 90% to the woman. However, the jury assigned 5% to one doctor who examined her once several hours before the birth. He's the only one with anything, the whole $6 million verdict landed on him.
If that's what the lawyers consider a good case...
I remember looking up a meta analysis back when Obamacare was being debated about why doctors have a skewed perception of the liklihood of being sued (that part is apparently not controversial in the literature). Most of the reasons found were just basic human psychological errors (I heard Bob got sued and I'm not taking into account that I know a thousand people and that Bob is only giving me his side of the story). But I do also remember the point being brought up that medical malpractice lawsuits follow a power law distribution where a minority of doctors get sued the most and repeatedly, while the vast majority of doctors may occasionally get sued, but rarely lose (yet it creates a perception that they were lucky, even though they're good doctors).
I think my takeaway from that analysis was that doctors are just as illogical as everyone else when it comes to things that aren't medicine. So you shouldn't really be surprised that they're unduly influenced by large, visible, and rare lawsuits, because that's how everyone works psychologically.
Doesn't insurance take perception into account too? If the true chance of a lawsuit is X, but doctors believe it's some Y that's greater than X, then an insurance company could price this as if it was Y, and get (Y-X) in free money. Is there enough competition in this space to prevent that?
Showing you adhered to protocol is a valid defense. The problem is twofold:
(1) Your insurer will usually prefer to settle rather than go to court, it's cheaper, so fuck your defense.
(2) You still take the reputational and emotional hit of being sued.
People discussing this rarely seem to get that docs are far more emotional about this than the money at risk merits. There are many things in play beyond "I don't want to lose a lawsuit." We really do get very upset about malpractice suits, for many reasons beyond our premiums going up.
> People discussing this rarely seem to get that docs are far more emotional about this than the money at risk merits.
There's also the risk of losing right to practice medicine - that is, being banned from providing the very service you spent the best part of your life specializing in.
> If states actually wanted to address the costs of defensive medicine, they would do something like create affirmative defenses for doctors who adhered to certain established testing protocols.
Not a bad suggestion but resolving regulatory overhead by instituting regulation is a bit, suboptimal, IMHO.
The better solution is to reduce costs of the tests themselves:
Most meritorious? While not a medical case, the McDonald’s coffee verdict certainly wasn’t meritorious. Person burned when they spilled hot coffee, awarded millions because coffee was hot.
1) McDonald's had burned hundreds of people by that point, as the plaintiff's lawyer said in "Hot Coffee", "they were on notice." They served it that hot IIRC because it would stay hot slightly longer, even though lowering the serving temperature a tiny amount reduced burning disproportionately and would have prevented that and hundreds of other accidents.
2) The server didn't actually attach the lid to the cup.
3) She had horrible burns, 3rd degree.
4) McDonald's received an offer to pay for her ~$10,000 medical expenses, and counter-offered $600.
5) This was an old lady who had never sued anyone in her life.
6) She ultimately gave up on life in her old age because of the shaming.
"Hot Coffee" opened my eyes about the whole matter. I suggest you watch it.
I think one of the reasons they served it so hot was that they brewed it very hot. The reason they brewed it very hot was because the hotter you brew it the more flavor you can extract. The more flavor you can extract from the beans, the more liquid coffee you can produce from the same amount of coffee grounds.
They made it dangerously hot because it was marginally more profitable.
At trial they claimed they served it that hot because people wanted it to be hot when they arrived at their destination, but their own research showed that people consumed their food, including coffee, during their commute.
Extra tests... the cost of diagnostics is a tiny fraction of the cost of doctor time, and most patients just go to the doctor to get the test. The doctor is an irellevant gatekeeper 90% of the time. How about we start talking about ‘extra’ doctor visits because patients don’t have access to tests. There are some diagnostics where this gatekeeping is literally causing a public health crisis. ‘Extra tests’ are only an issue because of the untreated disease they reveal, which costs insurers money to treat. This ‘concern’ is all part of their lobby.
It's not entirely true that extra tests are only an issue because they reveal untreated disease that insurers would rather not pay for.
There are non-trivial false positive rates for many diagnostics that can and do lead to unnecessary follow-up tests, procedures, and emotional distress.
For example, "About half of the women getting annual mammograms over a 10-year period will have a false-positive finding." [0]
The US Task Force for Preventative Services works to clarify when diagnostics are appropriate given rates of false positives and false negatives for many different preventative services. And there are many groups that work to establish and record evidence-based guidelines for escalations of care outside of preventative care as well. Intermountain is one example.
'Extra tests' can be dangerous in a few ways: x-ray and CT scans give you a significant dose of radiation, MRIs and mammograms have high false positive rates (that can lead to painful and potentially damaging biopsies), etc. Plus there are a subset of people who are incredible hypochondriacs - if they could schedule tests directly they would have MRIs daily, convinced that the last one had missed the problem. Some people need gatekeeping.
What we need is doctors and a medical system motivated by the right things (health and wellness of the patient) rather than purely by profit and fear of lawsuits.
That is very accurate... I had an injury that I knew required specific surgery, but when I called the surgeon's office to make an appointment I was told that they only accepted referrals from family doctors, that is, I had to pay to visit a family doctor first.
This applies nowadays to most specialists as well.
That's a pretty reasonable filter to have. Sure, there'll be some cases like yours where you've got enough knowledge to request a specific surgery, but for every one of those there's likely to be several "your back pain is caused by weight and posture, surgery isn't indicated" (and the occasional "why don't we see a psychiatrist about that radio the CIA put in your brain instead of a neurosurgeon...") that the GP can winnow out at a quarter of the cost and without tying up an already in-demand specialist.
Specialists are packed to the gills already and very expensive. Specialists don't want to spend time with patients who don't actually need specialized care and insurance doesn't want to pay specialists without first qualifying the issue.
I agree; however the first thing he did was to order a CT scan to confirm the diagnosis and get the exact location. So the family doctor visit was thus duplicative.
Confirming the diagnosis might or might not be prudent, depending on the injury and how likely false positives are in those sorts of injuries. Confirming the exact location shortly before the surgery? That might be prudent, especially if the damage was likely to move a bit or become worse during the waiting time. This should have been explained better.
Otherwise, I'd agree that the test was unnecessary and shouldn't be done a second time. Weirdly, it could have asily been that the first test wasn't in his particular working network - I've seen this done in hospitals before (redoing tests from places not in the hospital's network). This still isn't an issue with the referral system, though, but points to other problems.
The US healthcare system is a raging river of money, and you can bet that every doctor, lab, hospital and other medical service has their buckets dipped into it. The entire system seems to be set up to squeeze as many billable office visits out of you as possible.
In general I think it's a good idea. However, once someone has an ongoing medical issue that requires a certain type of specialist that gate should be left open. Keeping having to go back to your primary just to get back to the specialist you actually need is wasteful.
> The doctor is an irellevant gatekeeper 90% of the time. How about we start talking about ‘extra’ doctor visits because patients don’t have access to tests.
My primary care physician refused to order a blood draw for a generic std check. I had no cause to think that I was infected, but my partner and I agreed to get screened so we could stop using condoms (she was on birth control). I was quite offended by this overreach. This drove me away from the physician.
"‘Extra tests’ are only an issue because of the untreated disease they reveal"
This is just not true. For example, right now, there's a lot of interest in 'diagnostic test stewardship' in hospitals to avoid overtesting, because it can lead to serious problems, like causing diseases (due to treatment with antibiotics) or infections.
Similarly, false positives for cancer screenings, etc.
Yup and doctors know how to milk it for the most money. Instead of sending an email with their findings, you need another appointment just to be told what could have been said over the phone or email. Worse are checkup appointments. You get a treatment then the next time you go in for ... What exactly? To make sure that saline injection didn't kill you? It's fraud and total bullshit and wastes everyone's time. I don't blame doctors, I blame our lack of a proper healthcare system in which they need to get theirs because only certain things are billable (the phone call or email aren't). Doctors know that every trivial office visit they are making serious money. My copay is $50 for a specialist. That's for usually only a few minutes and hides the egregious sums that insurance pays. Yes, their time is valuable but so is my money and paying exorbitant amounts to see a doctor who says nothing and does nothing other than send you for a test or making sure you're still alive after your last dose of an over the counter pain reliever (I'm not making that up) is fraud, fraud we all pay for as a nation because we can't have a proper healthcare system where patients aren't used for profit and lives are saved for the sake of saving lives not lost for the sake of profits.
With medicine becoming a cartel with sprawling medical networks, the tests become synonymous with cheese on a fast food burger — an extra quarter.
We have a old school PPO plan. My wife can go to the doctor for any purpose, and sure as hell there’s a pregnancy test for $5. If you’re on a statin, you’re worth about $600/year in lab tests. Not because of insurance companies, but because the GP or NP is the top of a sales funnel. They need to drive revenue in the network as the medical networks are less efficient.
The insurance company response is urgent care clinics, which the insurance companies spent millions lobbying for. Those are great for insurance because they hand out z-packs and nebulizers and send you home. Large employers self insure drugs, so it’s a profit center for everyone. Best part for them is the 32 year old unhealthy dude stays away from the both the outrageous ER and the GP and that statin prescription.
Urgent care centers are about keeping people out of the ER--patients with medical issues that shouldn't really wait to get in with their primary, but which don't rise to ER-level issues.
Firstly, I'll caveat with this that I'm Canadian - I see different issues in my system than the for profit model. Regarding the cost - I guess that depends on the tests themselves - MRI's and CAT scans are costly machines, especially compared to 15 minutes of a doctors time. Also, how does that affect availability of that equipment for higher priority patients?
There's also the question of ethics - how invasive of a procedure does one do as an extra test before it's an issue? My wife is a sonographer - ultrasounds aren't completely diagnostic, only indicative, and a lot of the time the patient will have to go to a more extreme diagnostic to confirm. Should we be skipping the ultrasound and going straight to the biopsy every time?
> MRI's and CAT scans are costly machines, especially compared to 15 minutes of a doctors time.
I know the machines themselves are very expensive, but what are the costs to run a test? Does it draw ruinous amounts of power when running, or are there expendable materials involved?
It's true that the investment does need to be recouped for purchasing future machines, but once you have one, it's a sunk cost.
And even then, if it's a big $5M machine [0] that lasts 10 years [1], and we generously assume it takes 1 hour per patient [2] and runs 12 hours a day, 300 days a year [3], the cost can be recouped if each test costs $140.
But an MRI bill easily costs 20 times the cost to recoup the investment.
[0]: They're usually $1-3M, and extremity scanners (hands, feet etc.) can be under $500k.
[1]: The average age of an MRI machine is ~11 years, i.e. they typically last 22 years
[2]: Most procedures take less than half an hour of scan time, but there's some shuffle and overhead
[3]: Medicine does not run on banker's hours
Or more... $2800 would be a cheap MRI in some places... $4K+ I've seen quoted.
It's also no coincidence that companies target physicians to form "imaging cooperatives" where they finance MRI/CT/PET offering recoupment times of a year or less...
and completely by chance have higher by a Std Dev or more ordering of imaging in their private practice...
It's hard, however ethical you are, to not err on the side of sending someone to imaging when you profit linearly off of said imaging.
Yup. Then it comes down to capacity - how many scans you can do a day vs. how many people need the diagnostic vs. how many people could use the diagnostic.
Spoken by someone that does not know how medicine is practiced.
In your same line of reasoning: if you waved all your legal rights to sue the doctor, and paid for him to prescribe your tests, you would find plenty that will feel comfortable doing so!
So make tests cheaper - sounds like an opportunity that gets a win for everyone without political miracles.
(I don’t know the market I am talking about at all, but) Maybe they could incentivize cheap tests by capping the cost per test that can be administered without some large red tape process. The market will provide tests under that cap where possible, so they can be administered more frequently & frictionessly. Patients are thoroughly tested, Doctors cover their butts, and test supply companies get to keep selling lots of tests.
Wait until the NY Times finds out that c-sections have greatly increased because of high-dollar awards like the one that made John Edwards (yes the politician) a millionaire...
My wife is a doula and apparently the injury and mortality rates for mother and child are much higher than through natural childbirth.
But because of their insurance coverage, if a mother or baby dies during natural childbirth the doctor is at greater risk for malpractice. So, they will rush mother's into C-section at any excuse (it saves them hours of work too not having to sit through a long labor).
Unfortunately, money and efficiency have taken priority over natural processes.
> My wife is a doula and apparently the injury and mortality rates for mother and child are much higher than through natural childbirth.
That is of course true, because C sections are primarily used in high-risk pregnancies and in emergencies. But what you actually care about is the counter-factual: if a given set of deliveries were "natural" rather than a C section, would mortality go up or down? It's hard to develop studies to answer that counter-factual. But there is good evidence that C-section rates are negatively correlated with mortality (i.e. they lower deaths) up to about 20% of deliveries, and have no positive or negative effect beyond that: http://www.skepticalob.com/2017/10/more-wailing-and-gnashing....
Indeed, there is new evidence that "natural" births are in the long term bad for mothers, dramatically increasing the risk of things like incontinence later in life: http://www.skepticalob.com/2018/03/what-if-c-sections-are-be.... As a practical matter, these negative effects will impact far more women than differences (if any) in morality rates.
A nit: is it really true that C sections are primarily for high-risk pregnancies? C sections are at an all-time high. Both my kids were delivered by C section after attempts to induce labor, but those inductions were based simply on calendar due dates assigned early in the pregnancy. People schedule C sections in advance.
More importantly: anyone who has had a C section before is likely to deliver all future children via C section; it's not a requirement, but a normal birth after C section is a special arrangement.
Finally: C section itself is a traumatic surgery with long-lasting health effects for the mother. It's routine, but still a big deal.
> A nit: is it really true that C sections are primarily for high-risk pregnancies?
C-sections are very disproportionately used for those, though perhaps not primarily; in relation to the risk statistics upthread, is the same basic impact. You cant just compare adverse outcome rates for C-section and vaginal birth without taking into account factors associated with adverse outcomes which also make C-section a more likely event.
I don't think this is unknowable; just a couple minutes of Googling turned up a bunch of studies. Consumer Reports posted an analysis from journal articles indicating that maternal mortality from C sections is strongly correlated with specific hospitals; since the predicates for an emergency C section generally aren't correlated, that strongly suggests it's the procedure and not the circumstances that are to blame. The major causes of mortality due to C section include sepsis and anaesthesia errors (this happened to my wife during the birth of our first kid), which are also intrinsic to the surgery and not to the circumstances of the pregnancy.
This source seems anti-natural from birth to breastfeeding.
Medicine can certainly help improve things but if you've been through the birth process multiple times it's clear that doctors try to steer you towards C-section.
Several of them have confided to us that it's primarily because of insurance. The hospital procedures want women in C-section for a few reasons:
1. The procedure is expensive (surgeon, anesthesiologist, etc.)
2. The procedure is fast (30-45min) and can be scheduled allowing the hospital to deliver more babies with less staff
3. The recovery period is longer (2-3 day recovery period as opposed to 8-24 hours for natural birth) generating revenue for longer while only being care from relatively inexpensive nurses.
Sure, there are many times when C-section is appropriate and has saved lives, but it's currently being over prescribed because of hospital guidelines that doctor's need to follow or risk malpractice liability.
> This source seems anti-natural from birth to breastfeeding.
Well yes, because the author is a doctor. The maternal death rate from "natural" child birth is 1,000-1,500 per 100,000 births. In the U.S., it is just 26.4.
> Sure, there are many times when C-section is appropriate and has saved lives, but it's currently being over prescribed because of hospital guidelines that doctor's need to follow or risk malpractice liability.
The data in fact shows no evidence that it is being "over-prescribed." If it were, you would expect to see worse maternal outcomes in countries with higher rates of C sections, and you do not.
I think that if you were to plot "c-section deliveries as a percentage of all pregnancies" through the years before and after Edwards' string of winning court cases, you would see that c-sections did increase.
But are the injury and mortality rates higher because C-sections are riskier, or because high risk childbirth are done through C-section? You need to control for the prior, otherwise the statistic is not very useful.
From what I understand C-sections are much riskier for the mother than we might think. It's significant surgery which can always lead to complications or infection.
The other factor is delivering a child naturally that gets stuck and didn't get enough oxygen but lives is probably the most expensive outcome for doctors because that child can live with severe physical or mental handicaps and need support the rest of their lives.
The problem is not that C-sections are riskier than "we" might think, and certainly not that I might think because I'm extraordinarily unlikely to be in a situation to decide whether to do one or not. The important question is whether they are riskier than the alternative (natural child delivery) in the specific instances where a C-section is practiced.
It's entirely plausible that C-sections are done too casually and doing them less often would result in better outcomes. It's also plausible that they are not. The cynical in me finds very plausible that the answer to that question varies widely doctor to doctor.
C-sections are done when something isn't going right, or when there is some medical issue against natural childbirth. You can't compare the risks with natural childbirth because you're looking at two different populations.
Your argument is like saying doctors make people sick because someone in a doctor's office is more likely to be sick than someone on the street.
Its not money and efficiency, its the law! Money and efficiency goals would satisfy your criteria by lowering death and extracting more money from the payer.
Its precisely a law trying to change money and efficiency that produces this result!
On the other hand of that argument, a woman in the middle of labor can be given paperwork to sign extra expensive treatment on the spot. A practice I've been told happens a lot. And thats not a situation where you can make sound decisions.
Thats right - he's effectively acting as an "ambulance chaser" - a legal role that often twists, embellishes, and often straight up lies to extract $$$ from hospitals and doctors.
Aren't a lot of these costs baked into all services due to malpractice insurance itself? If these doctors could be sued by some of their patients (the families), they still need to cover the cost of that insurance.
Beyond that, once defensive medicine is the status quo, why would they make a choice to not order their usual defensive panels? They aren't paying for them themselves.
True, but here's a point the NYT missed: caps on malpractice claims don't have to change how doctors practice medicine to reduce costs. By capping liability, they should make malpractice insurance cheaper and thus reduce the cost of providing care.
Caps on malpractice claims exist in numerous jurisdictions, and studies have shown them to have no discernable effect on either total healthcare costs or even specifically on malpractice insurance costs.
“In summary, there exists considerable evidence that medical malpractice reform measures reduce medical malpractice awards and also the losses incurred by medical malpractice insurance companies.”
Texas seems to have set caps so low that it has reduced premiums for doctors. But "making malpractice cheaper" isn't much of a policy goal.
Nationally,'tort reform' caps have had mixed results. "...better-designed studies show that damages caps reduce liability insurance premiums. The effects of damages caps on defensive medicine, physicians’ location decisions, and the cost of health care to consumers are less clear." [0]
That's a severe distortion of the reality. Most of those "errors" are not a healthy patient dies, but cases where the patient was dying, the only question being exactly when.
Real input from real practitioners in the industry in the real world.
Sure, Malpractice overhead exists but it's analogous to a drop in the ocean. There is severe waste elsewhere that need to be handled first.
It's a nosebleed in a patient hemorrhaging blood through a punctured artery.
The argument that ordering extra tests offer doctors "additional defense" in case of a lawsuit is absolute hogwash. If anything, the test results put the doctor at a further disadvanatge wrt defense because they had an additional datapoint they should have considered in their diagnoisis but did not.
The primary issue with Healthcare in the U.S. is cost - for those who have the money and the will to spend it, it's one of the best in the world. A lot of the rich visit the US for their Healthcare needs.
This is very wrong as it encourages short term profit seeking behavior which is absolutely the opposite of what healthcare should be (eg: C Sections being preferred over natural but long childbirth)
A for-profit system does not help the doctor/provider either (although it gives an illusion of it) - in such a system, the patient's only recourse is to sue the doctor/provider for damages instead of both parties focusing on the root cause which brought the patient to the doctor/provider in the first place.
Extra Medical Tests might be suboptimal but the real pain points are the marginal costs of each test.
Tests in the U.S. are extremely expensive. There is no standardized pricing for any test in the U.S. unlike the rest of the world.
While the rest of the world has pretty much agreed, for example, that a blood group test might be no more than $10 (In India, it costs 20 cents upto 70 cents at current INR-USD exchange rates), in the U.S. depending on which lab you go to, your insurance coverage, your ability to pay and other factors, you might be billed anywhere from $0 - $2000.
That is completely insane.
Also, labs in the U.S are not setup to take requests from customers directly. There are kits you can order and all that
Everytime I try to send a blood sample to a lab on my own, the lab staff seem to be lost - they want my insurance information, my EHR information, my NPI ID and when I explain to them I am not a doctor they ask me to provide my physcian's who ordered the test. (my physcian didn't order the test - I did).
I have had a few labs bill me outrageous out of network fees because the lab tests were not ordered by an in network provider (because I ordered them and I am not a doctor) and the amount of calls and paperpushing I had to do to correct the billing has made me just give up and let a doctors office handle this.
I can read a lipid panel. I don't need to go to a doctor's office to drive in traffic, wait an hour or more just to draw my blood and have it sent to a lab and then have the doctor read the panel to me. I read spreadsheets every hour of the day. I know what mean median and mode is and the lab result often offer these values anyways as part of the report.
I just need the test report.
Now, if my HDLs are too high and I cannot figure out why, sure, I do need to discuss this with a professional.
The solution to this madness?
An "all payer rate set" system. EVERYONE pays the same for the same procedure. Who pays for the care, while important, comes later, not before.
> Excess tests result in a higher number of false positives
True, but this is an engineering problem:
1. Just because some tests have a higher number of false positives does not mean all tests have a higher number of false positives
2. For those tests that do have a higher number of false positives, the well educated (and paid) professionals are aware and should have measures in place
Eg: Bloom filters are fantastic datastructures to test membership. However, they have false positives. We can control the probability of getting a false positive by controlling the size of the Bloom filter.
> Just because some tests have a higher number of false positives does not mean all tests have a higher number of false positives
No, but doing more tests leads to more false positives, which can lead to disastrous consequences. For example, someone could think they have aids through a false positive and lose their family, or choose to make an abortion, or start consuming preventive dangerous drugs, etc.
Not only that, you can bankrupt someone. It would surprise many how medicine is practiced differently based on available costs!
> For those tests that do have a higher number of false positives, the well educated (and paid) professionals are aware and should have measures in place
Yes, the measure is not to do them unless the symptoms and the DDX fit, along with other criteria.
"1. Just because some tests have a higher number of false positives does not mean all tests have a higher number of false positives"
No - this is a math problem. As you do tests on low prevalence populations (inherently what you're doing when you say 'excess tests'), positive predictive value drops. Sure, it will drop more for worse tests, but this is a trait of all tests.
"2. For those tests that do have a higher number of false positives, the well educated (and paid) professionals are aware and should have measures in place"
One of the problems is distinguishing between "This thing is here" and "This is a clinical problem". For example, if I give you the (highly sensitive) PCR test for C. difficile, you may very well have C. difficile in your guts. But that doesn't mean that's what's making you sick.
Similarly, there are a number of cancer screening tests that will detect cancers that will kill you decades after something else does - including, potentially, the surgery to deal with said finding.
False positives. My wife underwent multiple tests including a nuclear one to learn that her kidneys aren't exactly the normal shape. Completely harmless.
However, you do have something of a point. The normal screening tests should be able to be ordered by an insurance company or by the patient themselves. If you don't have any other medical issues that need a doctor there's no reason for a visit unless the tests find an abnormality.
If a doctor is sued for malpractice, that means they made a mistake. If they are performing extra tests to avoid malpractice, that means they are performing extra tests to avoid making mistakes. That is a good thing.
I'm a lawyer and have sued doctors for malpractice. Before bringing such a lawsuit, the lawyer hires an expert witness, another doctor, who testifies there is malpractice. Then, you are facing a deep-pocket insurance defense law firm. Med mal cases are costly and in some states, the damages are limited. No med mal lawyer worth their salt would bring a case unless there was clear malpractice.
Most med mal cases are failure to diagnose. That is, the doctor fails to find out what is wrong with you, and you are harmed as a result. If the doctor runs a battery of tests, however, they can properly diagnose the disease and not harm the patient. For a nominal fee, the doctor can save someone's life. This may be bad for the system as a whole, but it is good for the individual patient.
For context, a “simple” failure to diagnose case against a radiologist is going to cost me close to $20,000 out of pocket, and hundreds of hours of my time - not something I do on a whim.
A judges’s admin assistant that I frequently deal with recently retired. Someone asked her what advice she had for attorneys. Her response - don’t file med mal cases because they’re losers, and I practice in one of the top 5 “judicial hell holes” in America.
A friend of mine was a neurosurgeon (now retired) with a busy spine practice. He routinely had patients who told him they were grateful for his work and didn't feel he made any mistakes, but were suing him anyway because a lawyer convinced them they could receive a payout from his insurance company. His lawyers would settle for a certain amount which was less than the cost of defending a case in court.
>Denmark offers a radically different alternative, as do similar programs in other Scandinavian countries and New Zealand. To be sure, these countries have nationalized health care systems, unlike the public-private model in the U.S. But alternative responses to patient harm have been tried on a smaller scale. Virginia, for example, has a program designed to compensate for severe neurological childbirth injuries that is similar in some ways to the Danish system.
Common to all these programs is a commitment to provide information and compensation to patients regardless of whether negligence is involved. That lowers the bar of entry for patients and doesn’t pit doctors against them, enabling providers to be open about what happened.
So if a physician were to do every test on every patient every time, could they expect to never be sued? Would that be a good thing? “1 of everything please.”
You would go for an annual checkup and you get a CAT-scan and get cancer from it, then the doctor can say "Well, now we know you have it, you wouldnt without the test!"
> If a doctor is sued for malpractice, that means they made a mistake.
No, it means that someone has a story about an adverse outcome that they think can be blamed on the doctor making a mistake; it doesn't mean either that the adverse outcome actually occurred or that it was caused by the doctor making a mistake.
Not necessarily. Tests have costs and risks of their own. I would consider a test not justified in terms of cost and risk to be a "mistake". However doctors are far less likely to be sued for a thousand small mistakes than one big one, so they err on the side of too many tests.
If a doctor is sued for malpractice it means someone thinks there is a possibility the doctor made a mistake. After all, doctors win lawsuits sometimes too.
The doctors are ordering the extra tests to avoid the lawsuit being raised in the first place.
>> In the federal government and in states, there are frequent proposals to limit medical liability, but there have been no serious efforts to eliminate medical malpractice rights altogether.
Damb right. Take away a patient's right to hold doctors accountable and things go south very quickly, at least in a for-profit systems.
>>But American doctors often rail against the country’s medical malpractice system, which they say forces them to order unnecessary tests and procedures to protect themselves if a patient sues them.
The patient can only sue if the patient has been harmed. They aren't performing the extra tests in case just wakes up and decides to sue them. They perform the extra tests so that they don't miss something that could harm the patient so badly that they sue.
Doctors also forget that, again only in the US system, patients often must sue. A harm caused by malpractice isn't always covered by insurance. Patients need to find the money somewhere. Or if an insurance company does cover, the insurance company will then sue the malpracticing doctor (google "subrogation").
A few years ago several states had liability caps ready to become law (iirc $250k). Then a young woman lost both her breasts after a mixup in test results caused her doctor to recommend a double mastectomy. But at least she could still function relatively normally and the injury was not a financial burden. Imagine the costs associated with a 20yo confined to a wheelchair for the next 60+ years. Setting aside medical expenses, 250k buys you maybe four or five converted vans. While some cases are rightly suspect, many of the multi-million dollar settlements really do get spent on legitimate costs.
This is where a universal healthcare system takes some causes for inefficiency out of the system, reducing at least one source of major need for lawsuits - the need to fund future medical care.
That said, government administrated systems can become just as bad or worse because you don't have meaningful alternatives or the alternatives that exist aren't practical/affordable.
> Damb right. Take away a patient's right to hold doctors accountable and things go south very quickly, at least in a for-profit systems.
The study cited in the article would seem to rebut that quite vigorously.
FTA: > They found that the possibility of a lawsuit increased the intensity of health care that patients received in the hospital by about 5 percent — and that those patients who got the extra care were no better off.
An side of this that most people aren't aware of is that insurance companies will refuse to pay for any medical test they deem to be unnecessary. So, while a doctor may order additional tests to "CYA," it's pretty likely that the hospital won't be reimbursed for all of them and will just eat the cost of the tests. And, while a hospital may charge thousands for a test, the actual costs might only be in the hundreds. Depending on the hospital system, this can be a win-win because the tax write-off can be worth more than the actual test costs.
> So, while a doctor may order additional tests to "CYA," it's pretty likely that the hospital won't be reimbursed for all of them and will just eat the cost of the tests.
What? In the USA, it’s the customer who eats the cost of the test. 1. The doctor tells you to go do all these tests. 2. Neither the doctor, the testing lab, the hospital, or the insurance company knows which ones will be covered by insurance. 3. You do the tests. 4. Insurance company, months later, says “Surprise, sucker! We won’t cover these tests so you have to pay $N,000!” 5. The lab and doctor says “You signed the paper agreeing to cover the costs. F-you Pay me.”
Yeah, not so much. I had a bunch of tests run at the suggestion of my Provider when I turned 40. Insurer decided not all were needed in the first place. So Provider's lab (in house, attached to a hospital) just sent me a bill for $780 instead, for the balance.
Because the test only measured changes in the decisions by doctors. The doctors all work within the same medical culture, one built on the threat of lawsuits. Try telling an insurance company that they cannot be sued. See how many fewer tests get authorized when the actuaries can veto a doctor's recommendation without incurring liability.
As someone that lost a close family member because a doctor did not do one of those extra tests I think they are underrated. Cost vs benefit on this stuff is hard to get right, but lives are often on the line.
My condolences. But as someone whose father lost a kidney and suffered much un-needed anxiety and pain because of a false positive on one of those "extra tests" (and the general culture of treat-until-lawsuit-proof), I humbly request we meet in the middle.
You're making the mistake of thinking that over-testing, over-diagnosis, and over-treatment saves lives, when it probably doesn't, and may well decrease length of life as well as quality of life.
The US has massive rates of testing for various stuff. It also has a lower life-expectancy than other similar nations.
US life expectancy rate relates to poor healthcare and poor public health more than over testing. When you let a large chunk of the population die from treatable illnesses it's hard to make up for that by treating a subset even better than average.
The US homeless population for example is 1.56 million people and they don't get good healthcare.
That's the message some groups are sending. But, many people have an incentive to save money by reducing testing even it costs many people their lives.
So their exists some cases of over testing, but under testing is also common and a huge risk.
How 'bout 1000. 10000? Now were just arguing numbers. Don't forget the opportunity cost of unneeded treatments using resources that could have "saved" others as well.
We're taking many paths but ending up at some sort of rationing in the end. There's no easy answers.
I doubt they would have removed a liver if the risks where that low.
So, really it's saving lives at the cost of a fixed but low number of false positives and a lot of wasted tests not a 10,000 extra removed livers per life saved.
> he patient can only sue if the patient has been harmed. They aren't performing the extra tests in case just wakes up and decides to sue them. They perform the extra tests so that they don't miss something that could harm the patient so badly that they sue.
Unfortunately this is not how good medicine is practiced. Medicine is not a straightforward hard-science. Tests are expensive, patients dont follow through, they have personal consequences, chances you got something are 100% but chances you got something specific are 0.0001%.
It is digestible for a doctor to have liability but compare it to other professions: does a web developer that botched a UI for a bank transfer and introduces some consequence go to jail for robbery?
Doctors have too high a burden. And a decision or an oversight that makes someone die could be as stupid as a misprint on a paper.
A patient can sue for any reason. They can be wrong and sue.
It's then up to the physican to pay costs for legal defense (i.e. medical malpractice insurance). If the patient is wrong, then the physican can counter-sue. This whole dance is very expensive and, worse, time consuming (which, for a doc, is the ultimate resource). This cost ends up on the patient ad the doc must raise prices to account for the new insurance.
Patients normally sue a hospital system though. My partner has been involved in dozens of malpractice lawsuits over the years because every person who interacted with the patient during their stay is named in the lawsuit, not just the doctor(s) who treat them.
Hospitals have staff lawyers whose job it is to deal with lawsuits. So it's not terribly time-consuming for doctors outside of depositions.
It's safe to say that this is one of the reasons that doctors move from private practice into working in a hospital system. But it's also not a major one (dealing with insurance companies is the major factor).
Hacker news readers may not realize that joint liability exists in many states. Under this doctrine, the plaintiff can collect all awarded damages from even very peripherally involved people. A person with deep pockets can end up paying for others mistakes.
For example, a plaintif’s attorney might drag everyone into a lawsuit they can over a disappointing surgical result. The jury could be persuaded that an operating room nurse is 1% liable for a failed operation and the surgeon 99% responsible. If the surgeon can’t pay their part of a two million dollar judgement (brand new doctor perhaps) the nurse may end up paying the two million (maybe the nurse is married to a software engineer).
> the doc must raise prices to account for the new insurance
As I understand it, the portion of additional costs that the doctor eats and the portion that they charge to their patients actually depends on the elasticity of the market for the doctor's medical services. I can't comment on the market for the hypothetical doctor's medical services (in the U.S. AFAIK that market is very complex and opaque, and it probably depends on the doctor, location, and the specific service), so speaking generally about sellers and buyers:
The portion of a cost increase that is eaten by the seller or charged to the buyer depends on elasticity. Computer memory is highly elastic: If your costs go up and you try to increase your price $10/DIMM, then I'm going to buy my DIMM someplace else (unless your DIMMs are very special); a small change in price causes a large change in demand. Superstar developer salaries are highly inelastic: If the developer's costs increase (a new baby!) and they ask for more money, I probably have to give it to them because I'm not going to find a replacement. You see that more publicly with superstar athletes: Cristiano Ronaldo is irreplaceable; the market for his services is at the extreme of inelasticity; he can almost name his price for running around in shorts, playing games.
Probably because it's flat out wrong and shows a shockingly incorrect view of how things actually work.
> The patient can only sue if the patient has been harmed.
No, the patient can sue for whatever reason they want to. The doctor's malpractice insurance is going up regardless. Even a completely frivolous lawsuit will cost the physician real money out of his or pocket for years to come, not to mention the cost (if they choose to pursue it) of counter-suing the patient.
A frivolous lawsuit costs the patient (or patient's lawyer) a lot. Hospitals get sued all the time and they have an entire legal department staffed and ready to handle subpoenas.
You still have to prove damages. Which means getting treatment from another hospital for whatever mistake was made, then proving that the mistake was caused by the treatment you received at another hospital.
As stated elsewhere, my partner has been named in dozens of malpractice lawsuits and every one she was deposed for she felt was legitimate. There were a few where she told me privately that she hopes the people win.
That part is incorrect; however, the overall message of the post is correct. In a for-profit system, it's the patient's only recourse. Don't like it? Fight against for-profit healthcare.
But it does change the math. Where patients do not have to pay for their own injuries, ie under a national health service, they don't need to collect in order to pay for later care.
>> No, the patient can sue for whatever reason they want to.
Check your rules of civil procedure. Patients cannot just invent reasons to sue. The case must hit several benchmarks before a doctor ever has to respond, let alone be deposed. Dismissal for failure to state a claim deals with the truly junk lawsuits.
I don't get it either. People outside of healthcare probably aren't aware of how ridiculously common it is for medical mistakes to be made. Dozens of overworked people are coordinating with one another to take care of you.
The telling thing about laws to address malpractice liability is that they typically are focused on capping large verdicts. But such laws are illogical: generally, large verdicts will be awarded where a doctor screwed up and caused the most damage. Cases with large verdicts are the most meritorious ones, and the ones where limiting liability is least likely to eliminate over-testing that does not contribute to quality of care.
If states actually wanted to address the costs of defensive medicine, they would do something like create affirmative defenses for doctors who adhered to certain established testing protocols.