Malpractice: Right Diagnosis; Wrong Solution

Zeke Emanuel and his colleagues at CAP are taking on the malpractice system. Give them credit for recognizing the problem:

More than 75 percent of physicians — and virtually all physicians in high-risk specialties such as obstetrics and gynecology and neurosurgery — face a medical-malpractice claim over the course of their career. While litigation costs are higher for claims that result in awards, litigation costs for claims that do not result in awards are still significant, averaging $17,130. Moreover, physicians spend an average of 11 percent of their careers with an unresolved malpractice claim, and claims that did not result in payments account for more than 70 percent of this time…

In the most recent peer-reviewed study, orthopedic surgeons recorded in real time whether imaging was required for clinical care or ordered for defensive reasons and found that physicians ordered 19.1 percent of imaging tests and 38.5 percent of MRIs for defensive reasons.

So what do they want to do about it? Let doctors off the hook if they practice cookbook medicine:

To reduce the costs of defensive medicine, the Center for American Progress proposes a “safe harbor” in medical-malpractice litigation to protect physicians if they:

  • Document adherence to evidence-based clinical-practice guidelines
  • Use qualified health information-technology systems
  • Use clinical decision-support systems that incorporate guidelines to assist physicians with patient diagnoses and treatment options.

The biggest problem with these people is that they only talk to each other. At the NCPA we solved this problem a decade ago.

Comments (12)

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  1. Buster says:

    I’ve heard this before — give doctors a free pass if they practice medicine according to an accepted formula. The idea has some merit. After all, most negligence suites argue a deviation from appropriate medicine. But I imagine that tort lawyers would (still) try to show doctors deviated from the accepted practice of medicine.

    • Jeff says:

      They absolutely would, but I think they will have a harder time prosecuting the doctor if they established a protocol using the Center for American Progress’s Proposal.

  2. August says:

    “This study is consistent with many previous studies finding that 80 percent to 90 percent of physicians report practicing defensive medicine due to fears of medical-malpractice claims.”

    So its pretty prevalent

  3. Baker says:

    The contract idea is interesting, but it could get very complicated when you get into things that aren’t as attributable as dying.

  4. Nigel says:

    What is the political barrier to getting the NCPA’s proposal passed?

  5. Craig says:

    “Researchers Robert Wachter and Kaveh Shojania say medical errors can be divided into two categories:14
    1) Active errors by doctors, nurses or other workers, such as giving the wrong amount of medication during an emergency procedure.
    2) Latent errors, such as poor equipment maintenance or design, or poorly organized health care delivery, such as failing to adequately follow up on a patient’s diabetes or high blood pressure.”

    This is really good analysis, why hasn’t this been used?

  6. Linda Gorman says:

    Government has already solved this problem, for itself. States use sovereign immunity laws, the feds have special appeals process.

    Just let the private sector have the same standards as the public sector and, voila, problem solved.

    As noted in the links section,

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