Defensive Medicine Driving Up Healthcare Costs

Posted on: November 16, 2009  |   Author: Jamie
Filed Under: Access to Care, Fraud & Abuse, Health Information, Liability & Litigation, Other   |   Leave a Comment

There is a heated debate currently ensuing between doctors and lawyers about defensive medicine and its effect on the rising costs of healthcare in the U.S.  Doctors attribute the high costs of healthcare to the payments of malpractice insurance and malpractice lawsuit awards.  Trial attorneys, however, are blaming the rising costs on the practice of “bad medicine.”

Of the $2.5 trillion dollars spent each year on healthcare, doctors say that 10 percent of this amount is attributable to practicing defensive medicine and paying for malpractice insurance, while lawyers attribute less than .5 percent of this spending on payments for medical malpractice settlement costs.  Around 720 doctors who responded to a 2008 survey by the Massachusetts Medical Society reported practicing defensive medicine in fear of facing a malpractice lawsuit, estimating the cost of extra tests to be around $281 million and unnecessary hospital admissions around $1.1 billion.  A study by researchers at the Harvard School of Public Health and Columbia Law School performed in 2005 found 93 percent of the 824 doctors who participated reported practicing defensive medicine. Lawyers attribute the rising costs of healthcare to “bad medicine,” insisting that medical malpractice suits protect patients from the devastating effects of medical errors. Lawyers also feel that the extra tests involved in the so-called practice of defensive medicine are really fueled by the self-interest of the doctor, arguing that many doctors have a financial interest in laboratories that conduct extra tests or procedures creating a conflict of interest which could add to the level of unnecessary tests.

Congress is currently deciding how to curb the rising costs of healthcare. A 2009 Congressional Budget Office analysis estimates that government health care programs could save $41 billion over 10 years if national limits on jury awards for pain and suffering in malpractice suits were enacted, along with similar restraints.  Along with this approach, there has also been a drive for less adversarial approaches to limiting rising malpractice costs. The University of Michigan Health System uses a system in which doctors acknowledge mistakes and then offer compensation, causing malpractice claims to fall from 121 in 2001 to 61 in 2006.  Another movement, which has found less support with lawyers, is a campaign enacted in part by the Sorry Works! Coalition urging doctors to apologize for their wrongdoing and provide prompt compensation when appropriate.

Commentary: In the article, Dr. James Wang points out that he makes an effort to tell his patients when the treatments they may be considering are not necessary in order to keep the cost of providing care to a minimum. If the patients insist that they have the unnecessary test done though, Wang admits to ordering or performing the procedure in order to protect himself from a medical malpractice lawsuit later. Wang is among many doctors who admittedly perform defensive medicine in order to protect themselves from suits of medical malpractice. The catch here is that in many cases, doctors are not practicing “bad medicine” and are actually attempting to inform patients that the treatments they seek are not required for their health. In these, the majority of situations, if the choice comes down to protecting themselves from a lawsuit even though they practiced sound medical judgment or ordering tests even though they incur further unnecessary costs, how can society fault doctors for choosing to protect themselves?

msnbc.com, Nov. 4, 2009.

Change in MA law may require Philip Morris to pay for smokers’ cancer screening

Posted on: October 31, 2009  |   Author: Kathryn
Filed Under: Liability & Litigation, Public Health Policy   |   Leave a Comment

A lawsuit against cigarette maker Philip Morris USA may now move forward in US District Court after the Supreme Judicial Court of Massachusetts unanimously decided that the state’s negligence law is antiquated. While plaintiffs have historically had to show explicit injury before a defendant could be required to pay for diagnostic tests, if the jury sides with the plaintiff smokers in this case, Philip Morris could be required to pay for low-dose CT scans to screen for early-stage lung cancer.

The federal court asked the Supreme Judicial Court for a ruling on Massachusetts state law. Writing for the court, Justice Francis X. Spina wrote, “We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury, which should be compensable, even if the full effects are not immediately apparent.”

The federal suit is seeking class certification. If granted, the class would include anyone over fifty who has smoked at least one pack of Marlboros per day for at least twenty years, which would mean thousands of people from Massachusetts. At a cost of $400-500 each, annually, the tests would constitute a major financial blow, according to Edward L. Sweda, Jr., a lawyer with the Tobacco Products Liability Project at Northeastern University.

Philip Morris issued a statement that it wants the case dismissed since other state and federal courts have rejected such class certification of smokers’ claims. According to Murray Garnick, senior vice president and associate general counsel for Altria, “Six of the last seven state supreme courts to consider the issue have refused to recognize claims for medical monitoring based on the risk of future injury.”

Although this ruling could lead to new opportunities for litigation against the tobacco industry, the Supreme Judicial Court specifically stated that it doesn’t automatically apply to other toxic tort suits. It still requires a plaintiff claiming emotional damages to present objective evidence of injury. Also, it does not purport to extend the loss-of-chance theory to toxic tort suits.

Boston Globe, October 20, 2009.

Swine Flu Hits Campuses

Posted on: September 3, 2009  |   Author: Jeff
Filed Under: Health Information, Liability & Litigation, Public Health Policy   |   Leave a Comment

School is back in session, and American colleges and universities are on the alert for cases of H1N1 influenza (“swine flu”). 165 schools, representing about 2 million total students, are reporting cases ofthe illness, which can spread more easily among children and young adults. College campuses may be especially vulnerable because there are large numbers of people in small areas who interact frequently. Already in just the first two weeks of school, 1,640 cases have been reported, spread out among 55% of the reporting schools. This suggests that about 7.9 students out of every 10,000(0.079%) are infected. The highest rates are in the Southeast and far Northwest.

Fortunately, no deaths have occurred, and it appears the illness is “relatively mild” among students “at this early stage.” So that’s good.

Commentary: Ah, back to school. Students everywhere are studying, learning, making new friends, and maybe giving them swine flu. It’s not like any new school year I can remember. Just today, on September 2, 2009, St. Louis University sent a mass email notifying students that there had been five cases of “suspected” swine flu among students, four of whom lived off campus.

Like SLU, schools need to be completely upfront about public health hazards with their students, staff, and the surrounding community. The worst thing a school can do is delay releasing information out of fear it could
harm the school. The information puts people on notice that the risk is real, and allows them to take precautions against it, which they otherwise would not have. For instance, I have never been concerned about swine flu…until I saw that email. Because SLU sent it, I will take care to not spread germs, and if I feel sick, I will know to seek care immediately so I can get treatment and reduce the risk of spreading anything to others.

If common decency isn’t enough to encourage some schools to act, there’s always the fear of legal liability. Either way, the information should get out, and it should help keep swine flu’s impact as insignificant as
possible.

The Washington Post, September 3, 2009

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