One of the problems with the whole health care debate, and American politics in general, is that political score keeping (e.g., the importance of determining on every single issue, which party or ideology is winning, which losing) is far, far more important than effectiveness (whether the policy everyone is scoring would actually do what it's intended to do).
Probably the best, I mean worst, example of this is the whole Public Option debate: for something that will effect less than 2% of Americans (the CBO has estimated only 6 million will be eligible) it has taken on a-line-I'm-not-going-cross status for both Democrats and Republicans. Rarely in the debate about it, however, do we ever hear how little it will actually reduce cost (sorry Dems) or how ridiculous the notion is that this tiny program is a government takeover of 1/6th the gigantic US economy (sorry GOP).
This Wall St Journal story points out another example: while the GOP continually claims medical malpractice changes are the panacea to our health care crisis, and the Dems argue that all we should do is make "frivolous" law suits more difficult, the reality is far more complicated and any effective solution will have to be too. As the Journal, applying the common sense anyone who has spent more than a minute thinking about it, writes:
Doctors say it is often difficult to say how much of any given decision is driven by liability concerns. When ordering a test, the doctor may be mixing fears of being sued with a desire to provide the patient with the best exam possible and to please the patient, who wants to feel that treatment is comprehensive. And in many cases doctors increase their income by ordering more tests.
Given the complexity of the problem, bumper sticker, single point solutions, such as reducing award size, won't make much of a difference. But instead of critically analyzing complex problems and proposing effective solutions, our politicians and political system obsess on keeping score and making sure their side "wins" ... whether it actually solves the problem or not.
Here's the WSJ article showing how tough-to-change this issue really is:
When a patient shows up at a doctor's office with a bruise after falling and bumping his head, the physician might order a CT scan even if she believes the injury is superficial.
Worries about a malpractice lawsuit might prompt her to take steps that aren't medically necessary. "If I don't get a CAT scan, this is that one case where I'll end up in court," the doctor might think, says Cecil Wilson, a physician who is president-elect of the American Medical Association.
This is defensive medicine -- a careful, fretful approach to treating patients, in which doctors authorize tests in part to reduce the risk that they will be sued. In the national debate over health care, doctors and policy makers often point to spending on defensive medicine as a key driver of soaring costs.
Calculating how much defensive medicine actually costs is extremely difficult, because medical professionals often have many motivations for ordering tests and other procedures. The U.S. spends a higher percentage of its gross domestic product on health care than any other nation in the industrialized world. Legal expenses contribute to the bill.
Even so, health-care experts say the direct costs of medical malpractice -- the insurance premiums, claims paid and legal fees -- amount to a very small portion of overall health-care spending.
Total spending on medical malpractice, including legal-defense costs and claims payments, was $30.41 billion in 2007, according to an estimate from consulting firm Towers Perrin. That is a significant figure, but it still amounts to a little more than 1% of total U.S. health-care spending, which the federal government estimates at $2.241 trillion for 2007.
Indirect costs that stem in part from medical professionals looking for legal protection play a far larger role in health-care spending, doctors and some analysts say. And they are one reason medical liability is bubbling as an issue as Congress reviews whether to pass a health-care overhaul. Sen. John Kerry, a Democrat, and Sen. Orrin Hatch, a Republican, both said earlier this week that Congress needs to find a way to eliminate frivolous malpractice cases ...
At the University of Miami School of Medicine's patient practice, 14 cents out of every dollar collected in fees for services to patients goes toward buying medical malpractice insurance, says William Donelan, the university's vice president for medical administration. That figure doesn't include costs of defensive medicine, which are difficult to quantify, he says. "Our system is really irrational and out of control," he says.
Some advocates argue that the costs of liability aren't central to the overall health-care picture. Just how much medical malpractice suits drive up the cost of health care is "one of the most blown-out-of-proportion numbers in American public policy discourse," says Taylor Lincoln, a research director at consumer- advocacy group Public Citizen. He calls the broader concern about spending on defensive medicine "fear-mongering" about an exaggerated risk of lawsuits.
In a 2003 report that called for medical liability reform, the U.S. Department of Health and Human Services estimated that limits on malpractice awards could save between $70 billion and $126 billion a year. But that estimate was based on a study published in 1996 that analyzed data on elderly heart-disease patients from 1984 to 1990. That study, published in the Quarterly Journal of Economics, found that malpractice liability reforms lowered health costs by between 5% and 9%.
"Regardless of anyone's numbers, no reasonable person would suggest the cost [of malpractice expenses] is insignificant," says Darren McKinney, a spokesman for the American Tort Reform Association in Washington. "There is no reason in the world why we shouldn't look to contain that cost."
To that end, many states have passed laws in recent years aimed at curbing liability claims. An aggressive law passed in Texas in 2003 caps liability awards at $250,000 for noneconomic damages such as pain and suffering, a move that has led to fewer malpractice suits being filed, according to several prominent plaintiffs' attorneys there. According to Texans for Lawsuit Reform, a lobbying group that supports the caps, medical-liability-insurance rates have declined an average of 21% in the state since the law change, with almost a quarter of doctors seeing a 50% decrease.
But even some defense lawyers think the Texas laws are too severe. "I believe a $250,000 cap for someone who is seriously hurt or for the death of a parent who has left a spouse and three kids is too low," says Larry Thompson, a Houston-based lawyer who defends doctors and hospitals in malpractice suits.
Moreover, it isn't clear that capping malpractice payouts would rein in health-care spending motivated by fear of lawsuits.
In a 2008 report, the nonpartisan Congressional Budget Office said that capping malpractice awards would lead to lower insurance premiums, which could have "a very modest impact on doctors' fees and health-care spending." Award caps could have a bigger impact on health-care spending if they led doctors to order fewer unnecessary tests, but the CBO said it "has not found consistent evidence of such broader effects."
In a survey of Pennsylvania doctors in high-liability specialties such as obstetrics, 59% of respondents said they often ordered more tests than were medically necessary. The survey, conducted in 2003 when malpractice premiums were rising sharply in the state, was published in the Journal of the American Medical Association.
Doctors say it is often difficult to say how much of any given decision is driven by liability concerns. When ordering a test, the doctor may be mixing fears of being sued with a desire to provide the patient with the best exam possible and to please the patient, who wants to feel that treatment is comprehensive. And in many cases doctors increase their income by ordering more tests.
"Legal ramifications are one of the many factors that go into a medical decision," says Kevin Pho, a primary-care doctor based in Nashua, N.H., who writes a medical blog that often touches on defensive medicine.
Still, Dr. Pho says, "Doctors get sued for failure to diagnose and not ordering tests ... It's something that I do think about and in some cases it does influence my decision."
The American Medical Association argues that the cost of defensive medicine could be curbed by offering doctors a so-called "safe harbor." If a doctor follows established medical guidelines that say a given test is unnecessary, the doctor cannot be sued for failing to order the test.
A measure approved this summer by the House Committee on Energy and Commerce would provide incentives for states to adopt changes that some say could reduce the costs of defensive medicine. One change would require lawyers who represent patients to get a "certificate of merit" from a medical professional who certifies that procedures in a case failed to meet certain minimum standards.
Lawyers who represent patients say one way to slash the exorbitant cost of health care would be to cut down on errors doctors make so that fewer cases wind up in the legal system. The American Association of Justice, an advocacy group for plaintiffs' lawyers, suggests that hospitals should more aggressively report mistakes and state medical boards should impose stiffer penalties on doctors who make them.
As a matter of public policy, it might make sense to spend less money as a society on unnecessary tests. But Jack McGehee, a Houston-based plaintiffs' lawyer, says it is difficult to convince ailing patients that their doctor should order fewer tests.
"If I'm a patient," says Mr. McGehee, "I want you to practice defensive medicine."
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