Why should tort reform be a part of healthcare reform?

There seems to be a lot of confusion about what tort reform is and what it means when it is applied to health care reform. I don't think there is any question that trial lawyers are against tort reform and lobby heavily to prevent it, but that doctors want it. Unfortunately, the American public is skeptical about the motives of both of those groups. So should you be for it or against it?

It's not so much the cost of malpractice insurance, or the cost of malpractice trials, that affects healthcare costs in terms of tort reform. It's the constant awareness of the potential of being sued that causes doctors to order multiple, expensive and often unnecessary tests.

Patients have a lot of confidence in the ability of our healthcare system to correctly evaluate, diagnose and treat just about any adverse condition that a human might experience. However, patients also have been educated about many common as well as unusual and rare diseases, their symptoms, and what type of tests that are available for diagnosis. So when they show up in a doctor's office, they often come with expectations as to what tests they need, and they are getting more and more outspoken as to what they want and expect.

In medical school, doctors are taught early on that, when you hear hoof beats, think of horses, not zebras. In other words, common conditions occur commonly, and uncommon conditions occur uncommonly. So it is wise to consider initially that the condition is what is appears to be, a common and usually easily evaluated and treated condition. It is reasonable to only consider that the condition is uncommon when there is evidence for that.

But patients don't want to assume the best. They want to rule out the worst. And that essentially always requires testing, sometimes a lot of testing. But they have insurance, they pay their premiums, multiple tests won't require financial risk on their part, so they ask or even demand that the condition they fear be ruled out.

This puts the doctor in, on many levels, an uncomfortable position. If the doctor refuses to order the requested testing, the patient will likely become angry, and the relationship that should be one of trust and cooperation becomes adversarial. It's very likely that the patient will then seek another opinion and another opportunity to obtain what he or she feels is a "right."

The only way that the doctor can hope to preserve any positive relationship with a patient like this is to acquiesce and order what is almost always unnecessary testing. The doctor may try to explain his or her reasoning to the patient, and if the patient has confidence in that doctor, a reasonable approach might be agreed on. But even that outcome is difficult to reach since the explanation takes time. It is far easier and faster to go ahead and order testing. Everyone leaves the encounter (relatively) happy. The doctor-patient relationship is preserved. The tests will almost always come back negative and the patient will tell friends how wonderful the doctor is.

For those of you who are thinking the obvious question, but what happens if the patient really does have the feared disease? If the disease is not apparent enough for the doctor to suspect that is may indeed be present, then it is almost always reasonable to observe the patient for a period of time. If the condition is mild, then the patient will get better without extreme measures, and many thousands of dollars will have been saved. If the patient does not improve, or shows additional symptoms, then further testing will be considered. That is how medicine has been practiced for a long time. Every sprained ankle does not need an MRI to rule out cancer.

The doctor may well also consider that if the patient has a poor outcome, for any reason, then a lawsuit might be filed. Most doctors want to have a good relationship with their patients. They want their patients to get well. And when a lawsuit is filed by a patient because of a poor, or even unsatisfactory outcome, it hurts. It leads to worry and anxiety. Someone is very publicly accusing this person of being a bad doctor, a bad person, of not knowing what they are doing. Malpractice lawsuits can drag on for years, even if the doctor did nothing wrong. They cause stress, anxiety, embarrassment, and self doubt. It becomes very easy and reasonable to go ahead and order those tests when that possibility is present.

So how might tort reform affect healthcare spending?

In an article from MSNBC.com, Limiting malpractice lawsuits can save big: Fear of lawsuits makes some docs order costly tests that may be unneeded, the CBO weighs in.

The latest analysis from the nonpartisan Congressional Budget Office estimates that government health care programs could save $41 billion over ten years if nationwide limits on jury awards for pain and suffering and other similar curbs were enacted. Those savings are nearly ten times greater than CBO estimated just last year.


"Recent research has provided additional evidence that lowering the cost of medical malpractice tends to reduce the use of health care services," CBO Director Douglas Elmendorf wrote lawmakers, explaining the agency's shift. Previously, CBO had ruled that any savings would be limited to lower malpractice insurance premiums for doctors, saying there wasn't clear evidence physicians would also change their approach to treatment.


Defensive medicine
On Friday, Elmendorf essentially acknowledged what doctors have been arguing for years: fear of being sued leads them to practice defensive medicine. Some doctors will order a $1,500 MRI for a patient with back pain instead of a simple, $250 X-ray, just to cover themselves against the unlikely chance they'll be accused later of having missed a cancerous tumor.

Of course, there are other issues involved in this discussion. But I believe this is one angle that many Americans have not considered.

Later,
Carol