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Not perfect, but what legislation ever is? - Health Care Rx Panelists

Not perfect, but what legislation ever is?

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Unlike so many, I find myself being more impressed each time I delve into the new law. This is, ultimately, a piece of legislation that WILL achieve many stated and even unstated objectives:

1. It will extend the Medicare Part A trust fund for just long enough to allow BOTH sides to discuss meaningful reforms to make it truly sustainable.
2. It provides a real commitment to our nation's poor; and strengthens Medicaid at the same time. Here, too, there are opportunities for additional reforms, but this makes clear what our priorities are; and, importantly, demonstrates our national humanity and compassion for those less fortunate.
3. It dramatically reforms our understanding of and right to health insurance. We have never had a federal definition of health insurance and this begins that discussion in a meaningful way.
4. It is financially sustainable, as long as our elected officials do not undo the tax and revenue-generating items.

What do we need to wait for and hope for?
1. Tort reform and/or Malpractice reform. This should have been firmly part of this law, but will have to wait.
2. Sustainable Growth Rate legislative reform: This is universally recognized as necessary and putting it off, even for a few months, is a big disappointment.
3. Implementation of insurance regulation and insurance exchange regulation will be the first real tests of the success of the law.
4. Taking the Medicare savings and law changes as a first step; and not ignoring the very real legacy costs that we still have to address. AND working with the private (for-profit and not-for-profit) sector to develop a structure and process for improving the delivery of high-quality health care with consideration of cost.
5. Revisiting the notion of better patient education and not being scared off by hateful rhetoric. Discussions around end-of-life and compassionate care should not be politicized or used for pure political gain.

I remain very optimistic about this country and about seeing our elected officials, of both parties, come together around common goals and purposes. In the mean-time, I am proud of the many elected individuals (and their staffs) for having stood behind their promises and made this a reality.

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Malpractice Matters. We Can Do Better. - Health Care Rx Panelists

Malpractice Matters. We Can Do Better.

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Depending on whom you ask, a broken medical liability system unnecessarily raises America's health-care bill by somewhere between 2 and 10 percent. It's not what's pushing costs through the roof. (Technology, bad lifestyle choices and an aging population are better culprits.) But medical liability adds an extra blob of costs on top: 5 percent would equal $130 billion a year.

Patients injured by physician negligence should have recourse, but too often our system punishes doctors who've done nothing wrong and fails to compensate patients who really have been wronged. Defensive medicine and doctor-patient mistrust are side effects.

An oft-cited example: a large percentage of obstetricians are sued in relation to cerebral-palsy births. Some research suggests that the result is lots more Caesareans being performed and relatively little change in cerebral palsy rates. C-sections raise the average cost of childbirth and make health insurance more expensive. Higher cost induces some decline in coverage. In addition, malpractice insurance costs and litigation fears drive some OB-GYNs to close their practices. Some places have been left with no practicing obstetricians, creating hardships for patients.

Generally, neither jurors nor judges are medical experts, so there's wide variation in the quality of rulings. Lawyers receive contingency pay, so bigger settlements mean bigger income. There's no penalty for filing frivolous lawsuits. Together, these factors generate strong incentives for plaintiffs to bring suit and for innocent defendants to pay settlements to avoid litigation and increased risk.

Some proposed solutions include: caps on non-economic damages, protections for doctors who self-report errors, mandatory arbitration before initiating litigation, and expert-run health courts (similar to bankruptcy, patent, and drug courts). Other countries offer intriguing possibilities: Some prohibit contingency fees. In the United Kingdom and Canada, losers have to pay the winner's legal bills, so bringing nonsense suits is risky. New Zealand replaced its tort system with no-fault insurance.

Medical liability reform is mostly absent from the current health-care reform debate. That needs to change. We can do better.

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One article states that a large percentage of obstetricians are sued due to cerebral palsy births. Is there a genuine medical mistake that causes cerebral palsy? If so, then what is being done to prevent that mistake? If not, then why the big settlements?

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Incentives for Quality, Not for Quick Answers - Health Care Rx Panelists

Incentives for Quality, Not for Quick Answers

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The issue of malpractice liability is part of a broader problem with the way government, the insurance industry and consumers look at medicine. The most common misconception about medicine is that it is a formulaic, cut-and-dried activity, with a "right" way to treat a situation and a "wrong" way. For the clear-cut examples, there would be little disagreement that patient safety and the failure to meet a minimum standard of care should trigger malpractice liability and an appropriate level of damages. However, there are many areas in which quick judgments have to be made with incomplete information, and in which the choices involve trade-offs among risks and outcomes. Prostate cancer is a good example. Sometimes there are multiple alternatives for treatment and there is usually no clear best choice from among them. In cases like these, we should equip patients with complete information on the available choices and prompt them to make well-informed decisions.

We will significantly reduce the frequency of many diagnosis and treatment malpractice lawsuits by paying medical professionals to take time to do proper diagnosis and treatment. The current Medicare and private insurance payment systems encourage professionals to rush through patient encounters and get quick answers, since health care professionals earn more by doing more activity, and earn nothing extra for better quality.

Some doctors practice defensive medicine, but the work compiled in the Dartmouth Atlas survey would indicate that this is only one of many contributors to excess medical costs. Excess care is more often the result of local practice preferences and an excess supply of hospital beds, technology and providers.

Therefore, I favor malpractice reform, but I believe more broad-based informed patient consent practices, combined with payment reform that drives physicians to spend more quality time with patients and a re-examination of discretionary care will have a bigger impact.

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A Growing Circle in the Pond of Medicine - Health Care Rx Panelists

A Growing Circle in the Pond of Medicine

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As a chronically ill patient and a former nurse of many years, I see malpractice as an ever-growing circle in the pond of medical care. The threat of lawsuit eats at the judgment of good, well-trained physicians.

Our wildly litigious society is ever ready to "collect." I've seen friends collect from stores when they trip over their own feet. The person or institution should pay the costs of injuries if they are truly at fault. Doctors are not the only ones who are liable -- we all are. We have to worry about cracks in the sidewalk in front of our house, don't we?

We have to educate the public to realize it is not their God-given right to collect for every incident in their lives. Why does blame always have to be placed? Many of our fellow citizens see all insurance companies, both medical and others, as banks to be visited when the opportunities arise: make a withdrawal.

Doctors are a much-needed part of our society but they are, after all, only well-trained, well-paid, very well educated technicians. They are also human beings who often work long hours, have bad days. Sometimes, they screw up. There's a big difference between a doctor who makes a medical mistake and one who is irresponsible and careless. All doctors, even the best ones, make mistakes. One of the best OB men I ever knew cut a baby's ear during a C-section. Errors occur. That's a far cry from the doctor who is poorly educated, drinks too much or callously schedules too many surgeries so he can take his vacation a day early.

Since most hospitals already have physicians and lawyers who watch and evaluate these problems, perhaps we could also use a special court that could make fair judgments. They could consist of doctors and attorneys. Their main purpose would be to find and uncover the truth. Insurance companies and attorneys have to stop encouraging the "give me" behavior of individuals who know the insurance company will settle rather than go to court.

The confidence and trust that should exist between a doctor and his or her patient is being eroded by this threat that hangs over the head of all physicians. Are caps the answer? Perhaps. An independent court could decide based on full medical knowledge. Certainly, there are cases in which the individual patient has been maimed or harmed and will need life-long care. There are others cases in which someone is being paid off for punitive damages alone. This is a much larger subject than simply embracing the medical community. It requires re-education of society to knock it off. What are the chances of that?

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There is a big difference between an honest mistake and gross neglegence. Doctors who are negligent would like to tell you that everything is a simple mistake but sometimes they don't act professionally and in their patient's interest. The quality of care varies quite significantly. The job is not paid well only because it requires skill but also because it requires responcibility.

I agree there are many abuses of medical malpractice, but when malpractices are made legally difficult to persue, gross negligence will be easier to justify. There will be nothing to punish hospitals who cut essential services. As corporations they want to reduce costs, and their main costs are quality doctors and nurses. While most hospital doctors and nurses are still good many of them are overworked and exhausted. What do you think that does to their quality of care?

TonieB, So true. Life has changed in our country and we've embraced the open hand with the "give me" attitude instead of the helping hand and the "I can take care of myself" attitude. Many of us have had hard times, worked our way through school and known what it is to be in charge of our own lives. Taking money from someone else because they're insured or have more than we do is not the secret to success. Of course, when great injury is done and someone needs lifetime care that's a different matter entirely. Thanks again for sharing, Sue

I remember where I grew up in rural Va, there was an older couple who always had the best of everything. It was well known they had sued several people for car accidents and the first malpractice suit I ever heard of. You knew to stay clear of them and their property. "they'll sue you" No one wanted to be friends with them for fear of a fall or accident taking place at your home.

Now it has become a ritual of "get rich quick". I agree with you that where there is neglect or harm done, that is a different set of circumstances. We do need to reeducate the public to get away from the mentality that someone "owes" you something and that there is an easy way out of lifes' daily routine. Being responsible for ones own actions has become a thing of the past. The fault always lies at the other man's door.

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Not an Exact Science - Health Care Rx Panelists

Not an Exact Science

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Hospitals are recognizing that the most expensive cases are birth-related injuries. Premier has built a collaborative of hospitals dedicated to re-engineering obstetrics care to reduce the severe and very infrequent errors that occur. The real answer to this issue is to engineer safety and reliability into clinical processes.

That said, frivolous lawsuits, unrealistic patient and family expectations and jurisdictions consistently friendly to big settlements all contribute to defensive medicine. Medicine is anything but an exact science. Look internationally at costs in countries without the liability environment in the U.S.

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Bending the Curve - Health Care Rx Panelists

Bending the Curve

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Malpractice reform is an essential component of bending the curve on health-care costs. The evolving standards of practice created by lawsuits and trial lawyers has altered the landscape of traditional medical practice and its time to re-align. There is no question that health-care costs are rising because many doctors order tests which may not be necessary.

In my days of clinical practice I was sometimes swayed by peer and market pressure to order tests that were against my conventional wisdom. I was fortunate to have trained under some of the most brilliant doctors of our time and the best lesson I learned was that there is nothing more valuable than a detailed patient history. Most of the diagnosis can be gleaned just from that.

In order for us to truly bend the curve on health-care costs, it will be prudent to allow the art of medicine to regain its rightful place. The U.S. has enjoyed a robust system of modern advancements but our resources are clearly limited.

The harsh reality is that rationing does happen. The concept of everything for everyone has clearly been at the root of many our national crises.

Malpractice reform is not the silver bullet.The ability to set caps on litigation and other standards of practice will require a solid infrastructure to manage and provide data. This does not exist. Malpractice reform can only be effective if we stop using snapshots to draw conclusions.

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This Does Not Constitute a Physician-Patient Relationship - Health Care Rx Panelists

This Does Not Constitute a Physician-Patient Relationship

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I was pleased to hear the President talk a bit about the need for malpractice reform. Estimates vary but most people believe that nearly 10 percent of medical costs can be attributed to defensive medicine. Given today's litigious society, a physician would be naive not to be concerned about the potential costs of litigation when a medical error occurs -- either by omission or commission. I often jokingly preface my comments with my friends and co-workers when they ask for medical advice (and yes...every physician has been asked for free advice at some point!) that "this does not constitute a physician-patient relationship." The fundamental construct of a malpractice lawsuit is that a physician-patient relationship exists, so if I establish there is none, they can't sue! They always laugh when I say this, and I am joking, but it does show the seriousness of fears of malpractice.

Very few people would deny that the system does indeed need reform -- we need to compensate those whose have been injured, and not compensate those who are not truly injured but profit from frivolous lawsuits. We all know that there are folks who realize that it is often more economical for a physician practice or insurance company to settle a nuisance suit rather than to litigate it. Although it may be a reasonable business decision for an individual physician or malpractice carrier, it raises the overall costs to society.

So, I do want to see changes in the system. But it's also important to acknowledge that not every test and procedure is done due to fear of a lawsuit. The practice of medicine has become increasingly complex, with an explosion of new information every year. Many tests and procedures are due to uncertainty of diagnosis. For instance, a patient comes in with some unusual or vague symptoms. A physician may order a battery of tests as well as some imaging studies because he/she isn't sure the cause of the patient's problems. There are times when a physician simply does not know what to do. This "cast a wide net" approach is not ideal, but it's often a result of many factors, not only "defensive medicine." When patients come into the doctor's office, they want something done -- either a test, a scan or a prescription. Unfortunately, the system does not allow us as much time as we would like talking to patients, so our default has been to simply order a lot of tests. Our medical training needs to improve to focus more on the cornerstone of medical practice: the medical history and physical. Unfortunately, many physicians do very little of either. So when medical errors occur -- and they inevitably will occur since medicine is an imperfect science -- patients are quick to want to sue, since they never really established an effective relationship with the physician.

I'm not optimistic there will be true malpractice reform, especially as it relates to aspects of law. However, this is a good opportunity to explore ways for the medical system to better manage the explosion of new information. It's hard for any one person to stay abreast of the most current research and data. If we help physicians and the system to more effectively assimilate and manage information, as well as give physicians more time to spend with patients, we would do more to reduce error and thereby create de facto malpractice reform.

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About this Archive

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