Fencepost Up My Arse

I consider myself a decisive person.  When I am wrong, I am decisively wrong. I’ve learned to live with it.  Once in a while, I am confronted with an issue that challenges my belief in my decisiveness.  Monday, at the Plaza, a few of us were herded into a room to listen to Dr. George R. Woodbury, a dermatologist from Cordova, Tn.  He talked to us, and answered questions regarding tort reform.  I believe Aunt B threw some statistics up over at TCP.  If they are true, then any advocate for the poor and under-represented among us should at least take a hard look at this issue.  So I did. After thinking about this issue for a couple of days, I am squarely in the fence straddlers camp.  Dr. Woodbury was indeed passionate, and created a sense of urgency in me.

I’ve read as much as I can stand.  It’s boring.  But it’s clearly important.  According to Dr. Woodbury, Tennessee is losing doctors by the gross.  Many other States have passed some type of tort reform, so he makes the case that we must do something about it here.  A pretty convincing case, actually.  Let me just lay out some concerns, perhaps competing concerns:

I’ve always disliked Doctors that see too many patients in one day, they don’t spend enough time with each one, and so the potential for error is much greater.

Doctors who are terribly negligent should pay a steep price for it.  This would ideally act as a deterrent and cut down on the amount of tragic cases.

Too many people are suit-happy.  Any error or omission, no matter how inconsequential, is seen as a possible free ride to wealth.

Too many lawyers are unscrupulous and will gladly strong-arm an insurance company into a settlement.  (I probably could have just cut this sentence off after “too many lawyers”, as I think I read somewhere that there are more people in law school than there are lawyers in the world,and, if that’s true, how are they going to eat?)

Those are the 4 most obvious.  I have additional questions.  For instance, if tort reform passed here, is there evidence that it would automatically reduce doctor fees?  Something tells me that prices would stay the same, though perhaps there would be more doctors around.

So, this is a cry for help.  I need any of my good Liberal friends(and both of my Conservative ones) to chime in here if they have an opinion. Please help get me off of this fence, it’s unbelievably uncomfortable…


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15 responses to “Fencepost Up My Arse

  1. Oh good golly. How to comment on Tort Reform [TR] without being boring? zzzzz. Can’t be done.

    Anyrate, buckle up. This may be long-ish. And forgive me for not linking up a lot of source material in this initial post.

    From where I sit there isn’t one type of TR. There are at least three. So when people say they are “for” or “against” TR it’s like saying they like “food”.

    I’ve always disliked Doctors that see too many patients in one day, they don’t spend enough time with each one, and so the potential for error is much greater.

    This isn’t really something that TR can fix, imo. It is a problem, but it’s a problem with many feeder issues.
    1. Medical education is expensive to obtain
    2. Medical practices are expensive to maintain
    3. Insurance companies no longer pay physicians equitably
    4. Government mandated standards of care require treatment in excess of available government funds.

    Theoretically, TR would fix #2 & #3, as the general thinking is that the insurance co.’s hold more revenue in anticipation of malpractice suits and therefore justify paying doctors less per patient.

    It wouldn’t fix #1 & #4. Hence the struggle between the Liberal Position (regulate insurance companies better) and the Conservative Position (Relax the government mandated standards of care)

    My position lies somewhere in between. I think the insurance companies have built an oligarchic monopoly that should be busted with anti-trust measures–not TR.

    The type of TR I think would be most useful here is a constraint on suit options for the uninsured recipients of mandated basic care. There are many people who are uninsured, seek treatment and receive the most basic care as determined by law. If that basic care does not fix them they are presently entitled to sue and receive rewards based on the assumption that if care beyond the governmentally mandated basic treatment had been given they would be okay. Many plantiffs win these suits.

    TR that would cap damages in charity treatment cases is necessary.

    Doctors who are terribly negligent should pay a steep price for it. This would ideally act as a deterrent and cut down on the amount of tragic cases.

    We’ve got two problems here. There are bad doctors and then there are good doctors who make mistakes. Malpractice insurance is for good doctors who make mistakes. Mistakes happen. The modern definition of a tortious wrong is an act of negligence or omission.

    Tortious wrong–the only legal concept addressed by TR doesn’t even apply to those who are BAD DOCTORS.

    The individual physician’s conduct should be weighed on the basis of a Tort vs. a Crime. If they’ve committed a crime, they should be criminally prosecuted.

    It’s a misuse of the civil court to channel criminal prosecutions through it. No matter what the OJ people think.

    Too many people are suit-happy. Any error or omission, no matter how inconsequential, is seen as a possible free ride to wealth.

    This is true. A cap on civil judgements might do some good but…

    Too many lawyers are unscrupulous and will gladly strong-arm an insurance company into a settlement.

    You had it right at ‘too many lawyers.’ ( That’s one of the key reasons I didn’t go to lawschool. What’s the point?)

    What most people don’t realise is that in 1989 the ABA relaxed their guidelines pertaining to lawyer advertising. They had to because there were too many lawyers and not a large enough referral base.

    My father about rolled over in his grave, even though he was still alive. He predicted then, and was largely correct, that the broadened scope of advertising would legitimise the process of “ambulance chasing” by cultivating clients and inflating judgment claims in order to keep all the lawyers in business.

    I don’t think it’s any irony that medical costs have skyrocketed in response to all those lawyers going on tv and letting people know that they can SUE! FOR! MONEY! if life doesn’t go their way.

    I’m not a lawyer. I could have been one, because I love legal theory with a passion. I could (as witnessed here) talk about it all day. But I can’t see spending a life gulling people into inflated lawsuits just to pay the rent on my stripmall office.

    The type of TR that I most strongly favour is one which caps NOT the reward to the plantiff, but the contingency fee of the attorney.

    That would still allow people to seek redress through the courts, but would discourage protracted and inflated suits designed to enrich lawyers at the expense of the medical system.

    So basically my libertarian opinion is somewhat sullied but:

    1. Trust-bust the Insurance industry
    2. Cap punitive damages in charity cases
    3. Cap attorneys’ fees


  2. Pingback: Tort Reform: Kill All The Lawyers « Just Another Pretty Farce

  3. I’m out.
    It’s Friday. Had a shitty week. It’s pretty outside.
    I’ve seen something bright and shiny. What were we talking about.
    Oh, I cannot do tort reform today.

  4. I can only do Tort Reform today as I live in bizarro land where legal theory IS my bright, shiny object.

    Weep for me, America.

  5. I must tell you that your last line made me laugh out loud, Katherine.

  6. Pingback: Nashville is Talking » One-Offs

  7. Sorry for the delay in responding, I was out trying to lure someone into rear-ending my car.

    Kat, I too laughed so hard I almost fell out of my chair. But I really appreciated your time in describing what TR should look like. For me, I think I’d error on the side of caution, that is, a good first step would be to place caps on the Attorney’s fees. I don’t think that will immediately place more doctors in Tennessee, but well, baby-steps. I’m hoping for some others to chime in in the next day or two, just to see if the “other side” has strong issues against TR.

  8. Julius Valerius

    I am going to clip in a long article below from the author of “How Doctors Think”, which has been the most instructive thing I have seen on this subject.

    Caps are not an answer. They penalize people who have been truly hurt. The bill currently working its way through MAY do what is needed: weed out the nuisance suits.

    McKinsey Global Institute has done a study recently that shows compared to other developed countries we simply are paying more for medical care and getting less in quality. While the trench doctors (peds and family practice) make less and work much longer hours, specialists make an obscene amount. And most young medical students are avoiding primary care. Hence the influx of foreign medical students, not necessarily bad in itself to anyone but Donna Locke.

    When medical costs hit 20% of GDP, we are truly screwed.

    As an intro to the article, remember the old joke about the difference between a surgeon and God: God doesn’t think he’s a surgeon.

    The mistakes doctors make
    Errors in thinking too often lead to wrong diagnoses
    By Dr. Jerome Groopman | March 19, 2007

    Five years ago, a woman named Leslie developed indigestion, abdominal discomfort , and, occasionally, diarrhea. She has just given birth to her third child, and life was understandably hectic at home. Her primary-care physician gave her antacids, but this afforded only slight relief.

    “I feel really different. Something has changed in my body,” Leslie told her doctor. But nothing abnormal was found on her physical examination or on routine tests. Leslie was sent to several specialists, and before each visit her primary-care doctor informed the consultants that Leslie was under “a lot of stress and seems anxious, and depressed.”

    “Nothing is physically wrong,” the doctors reassured Leslie. An antidepressant was prescribed, but it did not ameliorate her condition.

    Some four years later, Leslie felt dizzy and nearly fainted in the street. Her husband drove her to the local hospital, where she was found to be severely anemic. X-rays and scans showed a large mass where the small intestine meets the colon. Clearly, the tumor had caused her previous problems.

    Leslie is in her early 40s, an intelligent and thoughtful woman who told me her story in a clear and organized way. “I felt like I must be losing my mind,” she said when recalling how her symptoms had been attributed to “stress and anxiety,” and treated with an antidepressant. Upon reviewing Leslie’s medical records, I found a blood test ordered by one of the specialists several years earlier that had been clearly abnormal and indicative of an intestinal tumor called a carcinoid. Her symptoms were consistent with this type of endocrine tumor, and, indeed, this proved to be the diagnosis at surgery.

    Misdiagnosis occurs in 15 to 20 percent of all cases, according to some research, and it is estimated that in half of these, serious harm occurs.

    Why do we as physicians miss the correct diagnosis? It turns out that the mistakes are rarely due to technical factors, like the laboratory mixing up the blood specimen of one patient and reporting another’s result. Nor is misdiagnosis usually due to a doctor’s lack of knowledge about what later is found to be the underlying disease.

    Rather, most errors in diagnosis arise because of mistakes in thinking.

    Physicians diagnose diseases based on what is called “pattern recognition.” We draw bits of information from our patients’ symptoms, our findings on physical examination, the laboratory tests, and X-ray studies the way a magnet pulls from all directions. To form patterns in our minds, we use shortcuts in thinking, so called “heuristics.” Usually, a doctor generates one or two hypotheses about what is wrong within the first minutes of seeing the patient and listening to his or her story. Often, we are correct in these rapid judgments, but too often we can be wrong.

    Physicians are rarely taught about pitfalls in cognition. During their training, they work as apprentices to senior doctors. They learn largely by doing. In today’s medical system, where there is intense pressure to see as many patients as possible, the quick judgment is often rewarded.

    Unfortunately, working in haste is a setup for errors in thinking.

    Only very recently have medical educators begun to focus squarely on the problem of misdiagnosis, why it occurs, and what might be done to prevent it. It turns out that errors in thinking do not occur in isolation, but usually arise from a cascade of sequential cognitive mistakes.

    I only learned this recently when I realized I did not know how I think; in fact, when I asked other clinicians how they succeeded or failed in making a diagnosis, very few could explain how their mind works to decipher a patient’s problems.

    Let’s deconstruct Leslie’s case. Yes, the arrival of a third child can cause stress in a family. This truth strongly colored the physicians’ impressions, so they made what is called “an attribution error.” This involves stereotyping — in Leslie’s case , casting her as an anxious and somewhat depressed and distraught postpartum woman. The diagnosis of indigestion and abdominal discomfort with occasional diarrhea was too quickly fit into the pattern of a stress-related condition.

    The doctors fixed on this diagnosis, so called “anchoring” where the mind attaches firmly to one possibility. Anchoring so tightly to one diagnosis and not broadly considering others is called “premature closure.” Even when, later in Leslie’s evaluation, a blood test result was obtained that was very abnormal, it was not sufficiently considered; no one involved in her case could lift their mental anchor and comprehensively explore other possibilities.

    Discounting such discrepant or contradictory data is called “confirmation bias” — the mind cherry-picks the available information to confirm the anchored assumption rather than revising the working diagnosis.

    When I called one of Leslie’s doctors, he was crestfallen that he had missed what was wrong. I knew all too well his feeling. Throughout my career I have made cognitive mistakes, some of them originating from an attribution error.

    All of us as physicians are fallible, and while it is unrealistic to imagine a perfect clinical world, it is imperative to reduce the frequency of misdiagnosis. I believe all health professionals should learn in-depth about why and how and when we make errors in thinking, and I also believe that if our patients and their families and friends know about the common cognitive pitfalls, they can ask specific questions to help us think better.

    We can interrupt the cascade of cognitive mistakes and return to an open-minded and deliberate consideration of symptoms, physical exams , and laboratory tests — and in this way close an important gap in care.

    Leslie was lucky, by the way. Her cancer turned out to be treatable, and she is doing fine.

    Dr. Jerome Groopman is chief of experimental medicine at Beth Israel Deaconess Medical Center and a staff writer for The New Yorker. A more extensive look at these ideas appears in his new book “How Doctors Think.”

  9. Julius Valerius

    BTW not many states have actually passed caps. CA is the daddy of caps, maybe MS and a couple of others.

  10. not necessarily bad in itself to anyone but Donna Locke.

    I had to read this long comment twice cause I was laughing so hard.

    Julius, thanks for the thoughtful reply. Do you happen to know how the caps are working out in Ca? Have malpractice premiums dropped? Otherwise, whats the point? Also, how do we weed out the nuisance suits, without keeping those who are truly damaged but too poor to afford decent representation from seeking redress?

  11. Well. Fine. I’m glad my pain amuses you all. ;-p

    Hence the influx of foreign medical students, not necessarily bad in itself to anyone but Donna Locke.

    I am not saying a word about this. Not. Saying. A. Word.

    McKinsey Global Institute has done a study recently that shows compared to other developed countries we simply are paying more for medical care and getting less in quality.

    Well, kind of. We pay more, we get good quality but we don’t get a quality that matches what we pay for. Because we do have a higher benchmark for quality of care here. Depending on what you mean.

    I’m referring to catastrophic treatment, at which we excell. We do not have a model for preventative treatment, at which we suck.

    i.e.: Sending women and newborns home 24 hours after they give birth is bad quality preventative care

    Being able to “kill” a person so that you can perform life-saving brain surgery and then bring them back to life is outstanding catastrophic care.

    So, we’re pretty good with the really expensive stuff but suck at the not-so-expensive.

    Penny-wise and pound-foolish.

  12. Interesting discussion. Allow me to dive in:

    First, let’s dispense with the notion (not expressed here, but implied in nearly all political discussions involving the ability of individuals to file lawsuits) that litigiosity is new to the U.S. Ponder the words of Englishman Edmund Burke, written in 1775:

    In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavour to obtain some smattering in that science.

    Or maybe Thomas Paine is more your flavor:

    Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America THE LAW IS KING.

    If you study the origins of this republic, you will find that U.S. citizens have always had a habit of going to the courts to solve disputes. That is nothing new. The meme that ‘frivolous lawsuits’ are a new and evil thing was cooked up by the same conservatives who preach smaller government while expanding government into a shape of their own liking. In other words, the hullaballoo over excessive suing is mostly a smoke screen.

    Furthermore, the reality is that the overwhelming majority of lawsuits– ‘frivolous’ or otherwise– are filed not by individuals against corporations, but by corporations against each other, against government bodies, and against individuals.

    But the power of corporations (vessels of the wealthy and powerful) to sue isn’t what the conservatives have a problem with. They don’t like that the little guy can use the court to seek justice or reparation where high-priced access to legislators and executives (the access taken for granted by corporate interests) is out of his reach. The cons consider that ability an unnecessary obstacle to the heedless pursuit of corporate profits. That’s why they whine and carp incessantly about “trial lawyers,” and that’s why you’ll find conservative (and lots of allegedly liberal) politicians lurking behind the insurance companies on this issue.

    In a nation of laws, one that professes to live by the “rule of law,” complaints about “too many lawyers” ought to ring hollow. So if it isn’t greedy lawyers and immature patients, what is forcing doctors out of Tennessee (if that is what is happening)? What is driving up malpractice insurance costs?

    Here Kevin Drum offers a decent summary of the problem. To sum it up, the insurance companies are making doctors foot the bill for their bad investments. Malpractice suits aren’t the main culprit; insurance company mismanagement and greed are at the heart of the problem.

    As Drum points out, if doctors have a problem with skyrocketing malpractice insurance, then they should team up with the trial lawyers (and the public) to rein in the insurance companies. The doctors should not let themselves be used as tools by the insurance companies.

    In the meantime, it is important to remember that only the insurance companies and the HMOs stand to benefit from reducing the power of citizens to protect themselves in court. It is the insurance companies and the HMOs that have enough capital to line the pockets of lawmakers in the interest of getting their way. The court is the last refuge for those of us who can’t afford lobbyists.

  13. Julius Valerius

    Kaiser Foundation is generally a good source of health information. See link below, but a quick look tells you California still has more claims per doctor than does Tennessee. There frankly is not much objective info that would say Tennessee is a crisis state. That doesn’t mean we shouldn’t work to train doctors more effectively, per the article, and to limit nuisance suits. As to the bar for poorer people, that is generally true of the ability to seek remedy at law. But given that these are usually contingency cases, the egregious ones should still get to court.

    Here is the link, not sure if these things post correctly:

    McKinsey did take into account the fact that utilization of health care goes up with income. And we do get good trauma care. Where we fall down is chronic and preventative care. It is not because we are sicker. We just do a poorer job of getting the care delivered. And we pay more for the privilege. Think how most doctors’ offices really operate: insurance claim processing mills that invariably result in a prescription so we walk out thinking we have been cured. The only winners are the drug companies.

  14. Julius Valerius

    Yes, I know it’s boring. But boring and important often go together.

  15. Julius Valerius

    My nerdliness won’t leave it alone. In average payments for claims, same source, TN is 32nd at $253k in the country, CA is 41st at $205k.

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