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    Friday, January 10, 2003

    Malpractice Bandwagon: Consumer activist groups are hoping to use the malpractice crisis to promote their own legislation for patient safety:

    Consumer groups including Public Citizen and the Consumer Federation of America said lawmakers should pass legislation on medical errors, including disclosure rules and safety standards. They said high malpractice premiums also reflect weak insurance profits and investment decisions, not frivolous malpractice suits.

    "Prevention is the cheapest remedy," Public Citizen president Joan Claybrook told a news conference. "That is what will make patients safer, that is what will prevent lawsuits, that is what will bring down premiums."

    Safety standards may well be needed, but there's no reason to think that they'll reduce exorbitant jury awards, reduce the filings of frivolous lawsuits, or bring down insurance premiums. If it were truly bad medicine and bad doctors driving the large jury awards, then the areas with the greatest malpractice problems would be those with the poorest medical reputation. But it isn't that way. The largest malpractice problems exist in places with no tort reform on the books, and with prolifigate malpractice attorneys - Philadelphia, Cleveland, Las Vegas, and, until recently, Mississippi.

    I am not arguing that safety standards aren’t important - they are. They are important for appropriate patient care. And they are in the best interest of the patient. But it’s misguided to think that better safety standards can take the place of tort reform to solve the malpractice insurance crisis.

    Frontline Report: A reader emailed this report of his experiences with monitoring quality of care as a member of a peer review organization (PRO):

    The other physician consultants I worked with were varied in their backgrounds and specialties, and all were decent docs. After allowing for differences in practice styles and opinions, we could generally come to some agreement on what constituted a serious mistake. We had the ability to pull additional charts on a given physician or hospital so we could see if the mistakes were isolated or were part of a pattern. The PRO staff were good people, mostly nurses, who were experienced in the work and could ferret out amazing information.

    The PRO process was supposed to be Medicare's answer for improving medical care and punishing bad doctors. You don't hear much about these PROs today, do you? The reason is, the whole concept failed miserably, and here's why.

    1) The time and effort spent to deal with one serious but isolated mistake was disproportionate to the mistake. The only penalties the PRO could recommend were a) fines, b) exclusion/suspension from Medicare, or c) corrective action plans. No one wanted to do a or b for an isolated mistake. Corrective action plans were generally cumbersome and inefficient, and more so when recommended in cases of repeated mistakes. As one of my colleagues said, "what are we supposed to do, make Dr. X repeat his residency? He didn't learn it the first time, why should we think he'll learn it now?" Because of the layered process of review in which a doctor could be forgiven at multiple levels, the number of exclusions recommended per year was generally about one -- this in a state with 20,000 plus doctors. And the OIG
    [Office of Inspector General at the Department of Health and Human Services -ed. note] accepted only a fraction of these.

    2) The reluctance of physicians to discipline their own. As part of my chairing the aforementioned committee, I had to make presentations to the parent committee that would communicate with the OIG. The docs on that committee saw themselves as the Horatios at the bridge. No mistake was so great as to warrant forwarding to OIG. In one heated debate (about a physician with multiple, multiple serious errors in basic medical practice) in which my committee was recommending exclusion from Medicare, a doctor on the parent committee exclaimed, "but how will this doctor make a living?" My response was, "he can sell shoes." As you might imagine, that didn't go over well.

    3) The randomness of the review process. Even with a cadre of reviewing nurses and physicians, the total number of inpatient records we could review was a fraction of the yearly hospitalizations in our state. We spent a lot of time developing algorithms that would focus the review effort, but in truth this didn't work very well. So you could never be comfortable that you were really identifying issues and mistakes that, when corrected, would lead to real improvements in medical care.

    PROs still exist, but their efforts are now merely a sideline. If we as physicians ever wanted to be serious about improving medical care, we have to find ways to bring up care in a systems-based approach such as the total quality improvement processes practiced by companies such as Xerox and Motorola. We have to find ways to help doctors who are deficient in their practices catch up without creating new antagonisms. We need to have the spine to run dangerous doctors out of the profession.

    Until we do, the med-mal lawyers are about the only realistic disciplinary process we have. Hospital credentialing committees are always vulnerable to charges of political and economic conflict, and
    state boards are, shall we say, under-funded, under-staffed and under-competent.

    Just one opinion from someone who was formerly at the front line of this.

    I agree that we aren't particularly good at policing our own, and that malpractice lawyers serve a purpose. I don't want to see the tort system gutted. I do want to see it reformed so that it can’t be so easily abused by the bad apples in the legal profession. (A profession, by the way, that is even worse at policing its own than medicine is.)

    posted by Sydney on 1/10/2003 08:13:00 AM 0 comments


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