This is the second of a 3 part series by Dr. Moeller, the infamous Doctor on the Frontlines. In this series he explores ways in which our healthcare system is failing, and how it can be improved from the perspective of those who live and breathe healthcare every day. . . doctors. Click the links to read Part 1 and Part 3.
I want every person in America to have access to quality health care all at a reasonable price because our citizens deserve this. Unfortunately, universal access to care at a reasonable price cannot materialize unless lawmakers look to doctors on the front lines of care for specific input. We as doctors know in many ways why costs are high and why the public is unfortunately misinformed about how it all works. But we need a representative sample of practicing doctors in Congress discussing these issues so that these “insider” insights can be applied to our current laws. In this post, I look at the second of three central ideas that would lead to better and more affordable care.
2. Tort reform.
We as doctors have a calling to help patients. But, as we all are human, mistakes can happen. It is very important that patients who are injured by mistakes be compensated in a way that the law is supposed to provide. However, the point of law is to provide reliable decision-making that can sort good health care from bad health care. Instead, currently, it is run ad hoc jury by jury with no set standards. The system currently favors a doctor if in fact something was done wrongly or it may favor a patient even if no mistake was made. This unreliability leads to defensive medicine, ordering tests and procedures just to prove that you did something, or excessively documenting trivial facts to prove you looked at everything. The estimates for defensive medicine has been estimated up to $200 billion per year. The current laws neglect both the patient and the doctor and drives up costs with administrative and attorney fees.
Here is an example of the evolution of defensive medicine. If a family physician determines a patient’s headache is likely due to tension and there are no warning signs for something serious, the doctor may choose not to order a CT scan and have the patient follow up if symptoms do not improve. Rarely, a tumor or bleeding in the brain could present in such a way despite a normal clinical evaluation by the doctor. If that patient ends up having a tumor or bleeding, they can sue the doctor for not ordering the CT scan earlier. In turn, that doctor doesn’t want that to ever happen again, even though he did everything right by using his clinical knowledge to determine nothing serious was likely going on.
Thus, he will order CTs on everyone simply to avoid a frivolous lawsuit even though he knows that the CT will be normal. This exponentially increases costs as doctors across the thousands of hospitals in America follow suit not only for headaches but for other common ailments. No, doctors cannot play God and know every outcome with the thousands of patients they see yearly. But they are very good at using their knowledge and training to determine if someone is sick and likely needs further immediate attention or not.
Having said that, if the doctor did do something wrong, the patient is still taken advantage of with the current tort system. Thirty-nine percent of cases take three years to settle and 60 cents on the dollar are used for lawyer fees and administrative costs. Patients definitely deserve to be compensated for poor health care and this current system fails them.
The answer to this rests in health care courts described by Common Good Chair Philip K. Howard. He states that expert judges without juries would determine what is good versus bad care. This would provide consistent standards of what is required in certain health care situations. It would benefit patients because they would not spend three years dealing with the jury system nor pay trial lawyers 60 cents on the dollar for a case they may not even win. And it would benefit physicians because they could act on their best professional judgment without being scared of being liable when they did nothing wrong. It would let us do our jobs without being smothered by lawyers looking over our shoulder, yet provide patients with fair consistent rulings in cases of being wronged.
By creating clear standards of care, health care courts will allow judges to dispose of weak and invalid claims quickly after filing, while also disincentivizing doctors and insurers from defending cases in which they are clearly at fault.
-Matthew Moeller is a practicing Gastroenterologist. He can be reached on twitter (@DrMMoeller).