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As this issue of The Doctor's Advocate goes to press, a conference committee of U.S. House and Senate members is attempting to craft a compromise bill to improve the quality of managed health care. Last year the House passed a managed care bill that differed most significantly from the Senate version as it dealt with liability.
The bill that emerges from these negotiations will have a tremendous impact on physicians. If the compromise bill extends liability to managed care and is signed into law, physicians will be drawn into lawsuits against health plans, either as codefendants or by cross-complaining defendant health plans. Very large judgments and a significant increase in the practice of defensive medicine are potential results, both of which will drain money out of the health system that could be spent on patient care. Ironically, lawsuits will not deter managed care plans from interfering with care recommendations. On the contrary, if they are held liable for outcomes, health plans will be motivated to exert more control over treatment decisions.
As the delicate negotiations in the conference committee began, the National Academy of Science's Institute of Medicine grabbed headlines around the country by releasing a report claiming, in part, that between 44,000 and 98,000 Americans die each year as a result of medical error. The report, entitled "To Err is Human: Building a Safer Health System," called for mandatory, public reporting of serious errors and recommended a new federal agency to collect and track error reports and develop policy.
The figures which featured so prominently in news stories accompanying the release of this report are drawn from the now dated Harvard Medical Practice Study. The authors of that study reviewed case histories of acutely ill, hospitalized patients and tried to identify instances of injury due to negligence. The methodology used to identify adverse outcomes and negligence was so flawed that the reviewers agreed only 10 percent of the time regarding the presence or absence of negligence. Nevertheless they estimated that if the rate of deaths resulting from error were extrapolated nationwide, it would amount to 98,000 patients. Not surprisingly, when they attempted to repeat the study in Utah and Colorado, they came up with a figure of 44,000. The figures themselves have little relevance other than their shock value. For a detailed critique of the Harvard Medical Practice Study, see additional articles on our site.
Sensational numbers aside, the more serious problems with the Institute of Medicine report are its focus on error reporting without adequate confidentiality safeguards and without necessary tort reforms.
A mandatory, public system of reporting medical errors would constitute a client and evidence database for personal injury lawyers. Equally detrimental is the chilling effect the threat of litigation would have on practitioners who would benefit from frank disclosure and discussion of errors. Aware of this, the Institute of Medicine editors pay nominal service to the idea that the focus should be on error prevention rather than blaming individuals for past errors. Unfortunately, if enacted as proposed, their recommendations would lead to more lawsuits, more defensive medicine, and more pressure on physicians not to disclose errors for fear of undue reprisals and litigation.
As mentioned earlier, one key shortcoming in the Institute of Medicine's proposal is that they did not recommend sufficient confidentiality safeguards for health care providers reporting errors. The report offers a timid suggestion that Congress extend current peer review privilege to voluntary reports. This proposal would not remedy the growing tendency of courts to open peer review to discovery proceedings in lawsuits, as did the state Supreme Courts in Kansas and Pennsylvania, or the political pressures to increase, rather than limit, malpractice litigation pressure on physicians and other health care providers.
An even graver shortcoming is that the report does not examine the catastrophic effects of the tort system on error reporting in particular and the health system in general. There are already malpractice suits filed against approximately 20 percent of America's practicing physicians every year (the figure rises to 40 percent for those in higher risk specialties). In a typical year 80 percent of these are without merit. Nonetheless, the average claim takes three-and-a-half years to resolve. All this litigation pressure severely limits the effectiveness of current error-reporting programs and would cripple an effort to centralize and publicize nationwide error reports.
Another consequence of the excesses of the tort system is the tremendous cost of defensive medicine. Stanford economists Daniel P. Kessler and Mark McClellan estimate that defensive medicine already burdens our health system with $50 billion per year in unnecessary costs that could otherwise be devoted to improving patient safety and extending coverage to the uninsured. Kessler and McClellan have concluded that passage of effective tort reforms, such as already exist in California's MICRA statutes, can limit defensive medicine and free money for patient care. For an in-depth examination of the costs of defensive medicine, see our Defensive Medicine articles.
The Doctors Company has contacted members of the committee explaining our concerns with the Institute of Medicine report and pointing out that reforms similar to MICRA have been passed by the House of Representatives for several years in a row. We have encouraged members of Congress to look beyond the hype and the headlines to see that the substance of the report's proposals is not the best way to achieve its goal. Effective tort reforms must be part of any effort to improve patient safety.
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