Can Tort Reform influence Physician and Patient Behavior?


If you listen to the attorneys “out there” they state that Tort Reform will decrease healthcare quality. Why? Because the threat of malpractice keeps doctors honest and makes them “watch their Ps and Qs” with the treat of a malpractice suit.

Not sure that I believe that because I have seen first hand what the constant threat of malpractice suits do to “quality” and the cost of healthcare. It only increases the cost with the ordering of additional tests, some of which are very expensive like MRI and CAT scans even in common presenting signs and symptoms like headaches. Many physicians order these additional tests, especially when seeing patients seen through the emergency room, concerned that if they don’t order these expensive tests and there is a complication that they will be criticized and lose when they are sued by the patient or a family member. So, instead physicians will continue to order additional tests despite what the presenting signs and symptoms and physical exam would dictate. How then can we change this behavior? Will we need more and more diagnostic protocols and templates to guide physicians and give them some support and will these be enough to change behavior and consider how costly these un needed tests add to the cost of healthcare.

I was reading a research paper by Marshall Allen and Olga Pierce asking the question why can’t patients get an acknowledgment or apology after an injury, infection or mistake during medical care? Their study was based on responses of 236 patients who completed ProPublica’s “Patient Harm Questionaire during the one-year period ending in May 2013 and then agreed to share the data. The results were evaluated and further studied by Dr. Marty Makary, a professor of surgery, and conducted independently from ProPublica. The data was published last week in the Journal of Patient Safety and the study found:

  • That it was common for health care providers to withhold information about medical mistakes. Only 9 percent of patients said the medical facility voluntarily disclosed the harm.
  • When officials did disclose harm, it was often because they were forced to. Nine percent of respondents said the harm was only acknowledged under pressure.
  • Apologies were infrequent. Only 11 percent of patients or their family members reported getting an apology from a provider.
  • More than 30 percent reported paying bills related to the harm. The average cost: $14,024.

Another study last year in the Journal of Patient safety estimated that at least 210,000 U.S. hospital patients a year die from medical mistakes. Makary and his research team pointed out that here was little research into how patients feel about experiencing medical harm and more important how patients would feel about physicians apologizing to the patients and their families and would it impact the potential malpractice suits?

Makary and other researchers state that clinicians may see the need to be more open with patents but lack the “moral courage” to do it, that is apologize. They further state that patient advocates and providers should work together on how best to inform patients, and medical school and training programs can introduce the needed skills. The authors cautioned that because their findings are from a self-selected sample of patients, it is not possible to draw definitive conclusions about patient harm or disclosure.

However, I restate that much of the “lack of moral courage” hinges on the fear of using their apologies in prosecuting them in a malpractice case.

  • I just read an interesting report written by Maria Torrieri on the Dive blog site that a “new” proposal in the Ohio General Assembly would allow physicians to acknowledge responsibility in a medical mishap without worrying about that conversation being used against them later in court.
  • Ohio’s legislation is similar to a bill pending in Congress. States with similar laws include Arizona, Colorado, Connecticut, Georgia, Massachusetts and South Carolina, said Tim Maglione, a lobbyist for the Ohio State Medical Association.
  • The legislation, sponsored by Cincinnati Republican Rep. Peter Stautberg, expands Ohio’s current “I’m Sorry” law, which already shields apologies by doctors. Nothing in the bill would prevent patients or families from suing after hearing apologies or other admissions, Maglione said.

Medical malpractice limitations is a tough issue, with trial lawyers and doctors presenting equally valid viewpoints—and it’s no surprise that this particular bill is also opposed by trial attorneys who represent people injured by medical mistakes.

Physicians all over the country feel limited in the way they practice medicine, as malpractice threats are always looming. So the Ohio bill, passed the GOP-controlled state House along party lines last week and expected to get hearings in the Senate before the end of December’s lame-duck session, definitely gives docs something to cheer about.

At the same time, medical malpractice victims bring up legit concerns that this kind of bill could lead to perjury as doctors who admitted mistakes during private conversations won’t have to confirm such conversations under oath in a courtroom.

The reality is that Ohio had previously enacted one such law back in 2004, and it was tested by a case that went all the way to the Ohio Supreme Court. The case involved a woman who went for a gall bladder procedure in 2001 and ended up in the hospital again three weeks later with a cut bile duct. Her doctor allegedly told her he took “full responsibility” for her injuries as she was being transferred to another facility. The victim and her husband filed a medical malpractice claim in 2007. The judge originally found in favor of the doctor, then and Appeals Court overturned the judge’s decision, saying the doctor’s statements should be admissible. But when the case went to the Ohio Supreme Court, justices overturned the Appeals Court decision, saying the doctor’s words of sympathy couldn’t be included as evidence because the law was enacted in 2004 and the couple didn’t file suit until 2007.

Kentucky does not have an “I’m sorry” law, but that does not mean that doctors here are never apologizing for their mistakes. In fact, at Lexington’s VA Medical Center, medical providers have been admitting errors and apologizing for years. Around 1986, the center’s administration decided to be forthright with all of its patients if medical errors occurred. They felt that even if it opened them up to medical malpractice or wrongful death lawsuits, it was still the right thing to do. What happened as a result of their honesty surprised the whole medical community. Instead of seeing an increase in the number of medical malpractice lawsuits, they actually had fewer cases filed against them. They discovered that being upfront with those who were injured allowed them to settle cases more quickly and avoid costly medical malpractice cases.

So, then the questions remain-

Would giving the patients and their families information about medical mistakes voluntarily lower the many malpractice cases?

Are there methods, like we see in other countries of covering the costs related to the correction of harm?

Lastly, would the voluntary information provided regarding the medical mistakes lower the costs of healthcare as well as would this information lead to poorer care due to lack of the threat of a malpractice suit if tort reform were passed by state or federal legislative organizations?

Remember all the commercials on television advertisements promoting the legal teams who can get you money for all the “bad doctors” out there. With the lawyers hitting every channel at all times, what is the average person to do when a “perceived medical mistake” is made?

My other question is what is the real problem with the threat of malpractice on the behavior of the clinician who will continue to order additional tests, most very expensive, which probably don’t need to be done except for the perceived threat of a law suit?

How do we get around this conundrum and how do we improve the healthcare system if we can’t improve this very expensive aspect of the total equation of healthcare delivery?

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