Medical Malpractice and Its Effect On the Affordable Care Act


One of my objections to Affordable Care Act was the lack of incorporation of tort reform in the bill/law. A few weeks ago I discussed the need to change of the behavior of the patient and the physician in order for the ACA health care system to “work” and be sustainable.

Dr. Christina Minami, Chung, et. al. discuss the effect of medical malpractice on surgical quality and outcomes. Much can be taken from this article and applied to our discussion regarding its effect on the ACA health care system.

The intent of the medical malpractice system, based on classic tort deterrence theory, assumes that the looming threat of a malpractice suit will deter poor care because the providers will be more vigilant and responsible and therefore deliver excellent care. Therefore, the providers will be encouraged to adhere to standards of care, which should lead to better patient outcomes. However, the critics argue that the malpractice system generates unintended consequences, such as defensive medicine, which may in fact lead to worse patient outcomes and only adds to the expense because of overuse of services or avoidance tactics that may result in overtesting, overtreatment, and soaring health care costs thereby defeating the deliver cost effective quality care. Consider that the annual cost of the medical malpractice system has been estimated to be $55 billion. The other consequence is that the perceived malpractice risk, may be forcing providers to leave high malpractice risk environments, high risk fields of medicine and surgery and this could affect adversely patient outcomes. Looking at some of the future strategies in increasing payments to primary care and the continual discounting of reimbursements to the high risk specialists and surgeons where is the return on the investments of a medical education and advanced training in the medical and surgical specialties.

In all the studies included in the collective review, none directly tested whether greater levels of malpractice risk were associated with greater physician adherence to standards of care. Also, there were no studies that showed a direct association between malpractice risk and subsequent changes in national measures of quality-of-care or patient safety.

Minami, in their study found a limited body of literature based on a number of data sources, including various surgical subspecialities, geographic regions, eras, etc. that there was less consistency in data regarding the ability of malpractice liability to affect physician practice and patient outcomes. When it comes to the relationship of physician practice patterns and treatment decisions, it may be the fear of missing an occult pathology or being accused of failing to intervene in areas of greater liability risk are manifested by a propensity to obtain unnecessary diagnostic testing and additional workup, even though these interventions carry their own inherent risks. However, not to utilize the full workup may put the physician at risk in a court of law, where the jury knows nothing about medicine. This also applies to the surgical specialties. Consider the obstetrics literature, which show trends toward increased cesarean section delivery rates and decreased vaginal birth rates after a previous cesarean section in higher liability environments. Other studies also showed that the malpractice environment could effect whether surgeons perform risker procedures.

It is interesting what analyzing the data that we classify defense tactics as “assurance” versus “avoidant” behaviors, the former alluding to the practice of ordering medical services with little clinical value (consider the CT or MRI scan ordered for the patient with the headache with no signs on physical exam), and the latter referring to practitioner avoidance or certain high-risk patients procedures and less that perfect outcomes. Also, one has to consider the high-risk procedure on a patient with many co-morbidities (heart disease, pulmonary disease, kidney disease, and diabetes), which increase the risk of complications, long term hospital stays and penalties such and lack of payment by the system which will only value quality outcomes and not quantity of procedures, hospital stays and office visits.

So, in summary there is evidence that medical malpractice liability influences better physician clinical choices, there is little support the theory that the threat of medical litigation improves physician adherence to quality care indicators or improves patient outcomes. In fact, the US is the only country to continue to support the medical malpractice system and where we find the quality of care so low when comparing other countries with a government run health care system and especially in our country where we spend the most on health acre, approximately 17% of our GDP. Not a very good business decision for sustainability.

Another over whelming risk to the malpractice system as well as reductions in payments for the surgical specialties is the reduction in surgical specialists who will be able to care for the increased population of newly insured patients, especially at the lower payment scale through the Medicaid or Medicare reimbursement rates. This then creates potentially longer and longer waiting periods in which our patients can get the care that they need. Consider the waiting periods in other countries, which I have already pointed out in other postings, or the denial of care as they have done and we will need to, based on the cost of care, number of specialists, survival statistics, co-morbid conditions, age, etc. Not a pretty picture, but a necessary topic to cover considering what is the future in the American health care system.

So, how does the average American shoved into a system with so many flaws and in which we had no choice in the matter survive?

Over the next few weeks I am going to try to outline a Survivor Guide. Stay tuned!

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