Medical Malpractice Mythology

Apparently things work like this at the Washington Post. They find an interesting topic, find a person with good qualifications to author a piece on that subject, then... run the resulting work on the editorial page so that they don't have to fact-check. Today, they present a magnificent example of distortion through an editorial on medical malpractice, by William R. Brody, president of Johns Hopkins University.

Brody announces that there are five myths of medical malpractice, and sets about advancing various myths in the guise of "rebutting" his contrivances. His first "myth" is that "The medical malpractice crisis is someone else's problem, not mine." to which he replies by asserting that people are losing access to medical care and "doctors are leaving practice in the face of unaffordable insurance premiums", or otherwise cutting back on services. He does not explain how doctors can increase their incomes, even taking malpractice insurance into consideration, by quitting their highly compensated profession. Nor does he explain in what, if any, specialty a medical professional can see a significant drop in malpractice premiums by "cutting back on the services they offer". That is, without so dramatically changing their practices they effectively qualify for insurance under a different specialty or subspecialty.

Further, where is the evidence that doctors are fleeing the profession? Florida had more licensed doctors in 2003 than in 1998, with an increase in new applications, despite a supposed "malpractice crisis". This year the chairman of the Pennsylvania Medical Society was forced to admit that he made up his three-year claim that doctors were leaving the state in large numbers, when confronted with documentation of an 800 doctor gain. In 2003, the GAO documented that in 2001 there were more doctors in Washington, in both rural and urban settings, than there had been ten years earlier. Ohio had a five percent increase in medical licenses issued between 1998 and 2003. Illinois showed a 30% increase in doctors between 1994 and 2004. North Carolina documented an increase in OB/GYN's from 843 in 1997 to 937 in 2001, despite the fact that the specialty has borne some of the highest premium increases of any field of medicine.

Other than in insurance industry and lobbyist rhetoric, where is this supposed "flight" from the profession actually manifested?

Brody also suggests that malpractice insurance costs may make medical care unaffordable. That claim may sound like a bad joke to anybody who is uninsured or underinsured, as medical care is already unaffordable. And the adequately insured aren't particularly concerned, because... well, they have insurance to pay the bill. As Brody later addresses the cost of "malpractice" under a later myth, I'll leave this issue for the moment.

Brody's second "myth" is "We need to preserve the current legal system to guarantee a fair hearing and provide compensation for patients harmed by the health care system.". Brody argues that the present system is unfair and is "essentially a lottery" - a claim doctors seem inclined to make. To back up this claim, Brody first misrepresents the findings of a 1991 study which "found that nine out of 10 victims of disability-causing malpractice go uncompensated The study actually found that only approximately 1 in 8 malpractice victims, as defined by the study protocol, pursue claims against the medical professionals who harmed them.

By contrast, our estimate of the statewide ratio of adverse events caused by negligence (27,179) to malpractice claims (3570) is 7.6 to 1. This relative frequency overstates the chances that a negligent adverse event will produce a claim, however, because most of the events for which claims were made in the sample did not meet our definition of adverse events due to negligence.

CONCLUSIONS. Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care.

I agree completely with the study's authors that the malpractice system is a poor tool for identifying substandard practice, and obviously a great many patients forego any effort to receive compensation for their injuries. But to claim that because only a small number of people who are harmed by malpractice choose to sue, the system is a lottery, is a rather shameful distortion of the study's purpose and findings. If anything, the study is good news for doctors - it suggests that the vast majority of patients understand their humanity and forgive their errors.

Further, the logical consequence of Brody's misrepresentation is that the system would be more "fair" if every patient harmed by malpractice filed suit. That would mean a literally exponential increase in malpractice litigation. And I think he knows that - but was simply anticipating that nobody would look behind his numbers.

Brody's next claim takes on the other side of the coin, claiming, "a recent study by Harvard University researchers found that 80 percent of malpractice claims were filed against doctors who had made no error whatever." This appears to be a reference to the 1991 Harvard Study which, consistent with the New England Journal of Medicine study, found that in 1984 only one in eight bona fide victims of malpractice sought legal remedy. (This is recent?)The study presents some issues of methodology and definition which weaken some of the arguments made from its findings, both for and against "malpractice reform". Brody, though, probably should have mentioned this finding: The tort system "appears to do a surprisingly accurate job of sifting out the valid from the invalid claims (in the latter cases paying the claimants nothing or just a small amount of damages)."

Brody's last point is similarly dishonest - he claims on the basis of recent medical findings that certain past litigation over cerebral palsy is called into question. It is a good thing to revisit old science, and certainly there have been vast improvements in medicine and medical care as a result of a better understanding of disease and its causes. However, you can only apply that science going forward. Brody appears to intend to mislead his readers into thinking that juries relied on bad science, rather than the best available science, in deciding cerebral palsy cases - and that simply isn't true. Don't get me wrong - there is plenty of room for improvement in the litigation of "bad baby" cases - but Brody's approach to the subject is fundamentally (and in my opinion intentionally) misleading.

Brody's third "myth" is that "The malpractice system is necessary to punish and remove incompetent health care providers." I'm not sure who is supposedly arguing this "myth" - the malpractice system is meant to compensate victims of malpractice. Discipline and removal of incompetent physicians is an entirely separate matter, handled by hospitals, licensing boards, and peer review panels. And on this subject, Brody's argument is wacky:

Unfortunately, the system that rarely provides just compensation for patients also perversely protects doctors who need to be removed from practice, by enabling them to sue other physicians who might step forward to question their competence. This undoubtedly has a chilling effect on whistle-blowing, and those who regulate doctors are often reluctant to suspend or revoke licenses without expert medical testimony.

He's, in my opinion quite deliberately, conflating medical malpractice litigation with lawsuits over defamation. While both are forms of tort litigation, from a lawyer's perspective there is a world of difference between litigating a defamation claim and a claim for professional negligence. Lawyers are reluctant to take defamation cases, as they tend to be difficult to prove and tend to result in small damages awards. Defendants cannot be sued over their opinions, and truth is an absolute defense to a defamation suit.

There is no rash of absurd or frivolous defamation cases by doctors against peer review panels - and, plainly, none that the tort reform lobbyists or the author of the editorial are willing or able to present. To the extent that a peer review panel smears the reputation of an innocent doctor, or abuses its position in order to exclude a competitor from practice, shouldn't there be legal recourse for the injured doctor? If not, why not?

Brody continues with the half-truth, "Nor does the current liability system provide a way to make health care safer." In a purely literal sense, that's true. But in practice, litigation has resulted in dramatic changes in the administration of health care, and significant improvements in patient safety. Anesthesiology used to be very much a "hit or miss" practice, with a very high level of injury and fatality particularly with general anesthesia. Following a wave of lawsuits, the science of that profession improved dramatically, with malpractice and maloccurrence dropping dramatically.

Brody goes on to claim,

What we need is a system that allows health care providers to work together to study errors and put practical improvements in place to prevent recurrences. The current system discourages doctors from talking about system failures for fear of being sued.

The "system" he appears to be describing is called "peer review", where doctors examine incidents of maloccurrence behind closed doors and make findings which are kept secret from the patients, their families, and the courts. What more does he want, in that respect? In terms of open discussion to improve patient safety, contrary to Brody's arguments, that is also occurring at a growing number of hospitals - and I haven't heard anything to suggest that the discussions have increased litigation, although there have been significant improvements in patient safety (e.g., with Ventilator-Associated Pneumonia).

Brody continues by arguing his fourth myth, "Malpractice costs are not a big deal -- they amount to less than 2 percent of total health care costs.". Brody correctly notes that two percent of a $1.66 trillion system is a lot of money. However, for obvious reasons, he doesn't return to his earlier claim that only about 10% of malpractice victims are compensated - given that earlier claim, shouldn't Brody be exceptionally pleased that the cost of malpractice is not ten times higher?

Also, Brody doesn't mention that approximately 10 to 20% of every health care dollar goes to... waste. As Physicians for a National Health Program noted,

Jobs with Justice will release a report on Oct. 7 showing that approximately $245 billion is wasted on private insurance red tape and protecting drug company super-profits each year. The study concludes that by providing insurance more efficiently and making drug companies sell in a more competitive market, the savings could be used to provide secure, affordable health care for all.

While I understand that medical malpractice is a personal issue for doctors, while waste is not, if a purported expert on the subject is going to make an economic argument that "2% of health care costs is a lot of money", it is not unreasonable to expect that the professional might put it into context by noting that it is far from the most significant area of potential cost savings.

Additionally, Brody presents no evidence that the figure is too high. (His evidence, as previously noted, is that the figure is actually too low.) He might as well be arguing that new cars cost too much on the basis of the percentage of an average household's income that goes to pay for a car - the fact that something is costly does not of itself mean that the cost is too high. And while I grant that it makes sense to work to lower the cost of something that is costly, it seems that the hundreds of billions presently going to pure waste would be an easier target for prompt and effective reform.

Brody next introduces the subject of "defensive medicine", claiming that if you go to a hospital with a headache " You are as likely to get a CAT scan as a couple of aspirin". I certainly hope that the standard of care at Johns Hopkins is higher than its President just suggested. However, it should be noted that the cost of "defensive medicine" is borne by the patient (or the patient's insurance company), and that if Brody's specific claim is true it is exceptionally profitable for his hospital and its radiology department. And while Brody claims "The added costs of defensive medicine are estimated at $50 billion to $100 billion per year", he provides no source for that claim, nor any explanation as to how the estimate was made.

If we turn to Harvard studies, as Brody did, we find that in 1990 a study by the Harvard University School of Public Health "did not find a strong relationship between the threat of litigation and medical costs". Or, more recently, a 1999 study from the Journal of Health Economics on the cost of Caesarean sections in states with or without damages caps, found "cost savings" of only 0.3% - and this in one of the areas ballyhooed by "tort reformers" as a centerpiece of defensive medical practice.

The study to which Brody apparently means to allude is the Kessler-McClellan study, a 1996 reporty by two Stanford economists. The General Accounting Office has found that the Kessler-McClellan study cannot be extrapolated in the manner chosen by Brody:

Because this study was focused on only one condition and on a hospital setting, it cannot be extrapolated to the larger practice of medicine. Given the limited evidence, reliable cost savings estimates cannot be developed.

This January, the Congressional Budget Office agreed:

When CBO applied the methods used in the study of Medicare patients hospitalized for two types of heart disease to a broader set of ailments, it found no evidence that restrictions on tort liability reduce medical spending. Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts.

Brody could, of course, demand a systematic study of "defensive medicine", its costs, and how savings might be achieved. But as his point is actually political, not economic, he instead prefers to make what he cannot resonable believe to be an accurate economic projection.

Brody's last "myth" is that "The current malpractice insurance system is in crisis because insurance companies are trying to cover losses from unwise financial investments made during the dot-com boom." His response to this is to argue that there has been an increase in the median malpractice award granted by juries between 1995 and 2000, and that there has also been an increase in the median settlement. That, of course, is fasinating - but in no way supports his argument. It is possible for the median award or settlement to rise for a large number of reasons, even as the overall cost of malpractice drops.

The best source of information on malpractice costs would come directly from insurance companies - but they are loathe to reveal it. So claims of increase in the median settlement or verdict come instead from informal sources, such as the reports of Jury Verdict Research, Inc., despite the disclaimer by JVR that its figures should not be used for public policy purposes. JVR, for example, makes no claim that its reports include all jury verdicts, estimating that they cover about 60% of jury verdicts. JVR also ignores all verdicts which return no damages award, verdicts reduced by judges, and verdicts overturned on appeal. It does not obtain its data in a methodological manner, and does not consider post-verdict settlement figures. JVR also makes no effort to distinguish between physician liability and hospital liability.

On those rare occasions when actual insurance figures are made available, as was recently the case in New Jersey, Massachusetts, Mississippi and Missouri, those actual figures revealed, in the words of an insurance industry executive, "Severity has not gone up, and in fact, it has gone down a little". Additionally, despite population growth, data from the National Association of Insurance Commissioners (NAIC) demonstrates a four percent reduction in medical malpractice lawsuits between 1995 and 2000.

So Brody presents flawed "median" figures, a tactic which suggests that "average" and "overall" figures don't support his claim. He doesn't present industry figures which show a decline both in damage awards and the frequency of malpractice litigation. And again he skips merrily past his earlier argument that 90% of malpractice victims go uncompensated - something that, if remedied, would escalate the cost of malpractice far beyond the increases in "median" verdict and settlement he claims.

Near the end of Brody's missive, there is a small truth: "A few new caps on liability costs aren't going to solve the problem.". For anybody interested in justice, caps are anathematic. Surely not even Brody would argue that it would increase fairness for the 90% of malpractice victims he believes to go uncompensated, for an additional group of severely injured malpractice victims to be grossly undercompensated as a result of arbitrary damages caps. Further, there is little evidence to suggest that caps will have any appreciable impact on the cost of malpractice insurance.

There is also something incredibly disingenuous in Brody's complaint that too much of a typical malpractice award is eaten up by attorney fees and costs. Doctors lobbies and the insurance industry have worked extremely hard to drive up the cost and burden of litigating malpractice cases - this is the inexorable result of their prior tort reform "victories".

Yes, it is possible to look at reform in a more global manner, and to try to work for a system that maximizes justice for both doctors and for patients injured by preventable medical error. But, given this "fast and loose" play with the facts, I am not optimistic that people like Brody are sincerely interested in achieving such a system.