[NPInfo] Edwards statement on malpractice

[Calif NP]

The so-called 'CYA' testing(s)/Labs/etc. are not necessary, are not the
standard of care, and are wasteful.  Statistically testing/labs/etc. which
are done, particularly if done to cover one's a--, are in and of themselves
an even greater source of litigation than not doing uneccessary tests/etc. -
that is a fact.  With surprising frequency, all those extra CYA
tests/labs/etc. will actually serve as useful evidence against the
practitioner. Further, ordering uneccessary tests/labs/etc. could constitute
health insurance or medicare fraud!  Such practices could also stimulate
patient complaints against a doctor to the Medical Board (not that they
would care, they are all pretty much Teflon coated).

Picture a physician in a deposition, either as a witness or as a defendant:
Question(s) by Plaintiff's Counsel:  Well, Doctor, you ordered all of those
tests, all of those labs, spent all that extra money - Doesn't that show us
that you knew that there was a problem?
You would not have spent your patient's money like that, several thousand
dollars, if there wasn't a problem would you?
Next Q:  After ordering all of those tests/labs/etc.  you did not carefully
review each of them did you?
Next Q: You did not call the patient back to review all of the results with
her did you?
Next Q: You spent how many $$$$ of my client's money, and you still missed
x, y, and z?  Isn't that the plain, simple, uncontrevertable truth Doctor?




Here's an interesting article:

January 10, 2006
On the defense? Not exactly.
Yesterday I wrote my first post on Tom Baker's book The Medical Malpratice
Myth. I talked about how the number of people injured every year is
drastically larger than those who bring suits, as well as the fact that all
malpractice spending (premiums, legal representation, awards, etc) amounts
to less than one half of one percent of all health care spending.

A commentor was keen to pick up on another malpractice talking point -- the
notion of "defensive medicine". So where does defensive medicine fit in the
malpractice spending puzzle?

As far as we can tell, "defensive medicine" is one of those tiny puzzle
pieces with the really strange shape (you know, the one that seems to have
2.5 sides?) -- you can't figure out where it goes until you've trudged your
way through the majority of the puzzle.

That's because defensive medicine is notoriously difficult to study. First,
researchers have to decide what constitutes defensive medicine. Then they
have to tease out whether the effects of those actions were harmful or
helpful. Given the fact that 100,000 people die per year because of medical
error, some instances of defensive medicine will be helpful because they'll
help reduce that number. Others will simply be unnecessary tests or more
invasive procedures to ensure "certainty", leading to increased spending and
even more risk.

The research that has been conducted indicates, for the most part, that
defensive medicine has little effect overall and that states with tort
reform have slightly lower rates of spending than those without. But one
thing is clear -- malpractice fears aren't sending shock waves through the
system.

. In a clinic scenario survey by the Office of Technology Assessment, where
doctors were given a situation and asked how they would proceed, researchers
calculated that 95% of doctors did nothing but order a test or diagnostic
procedure. The principle reason doctors gave for ordering the procedure
"almost all of the time" was medical indications. "Malpractice concerns"
were given as a reason in less than one half of one percent of the cases.
OTA researchers concluded defensive medicine is "not likely to explain very
much of the huge growth in health-care expenses over the last century".

. Researchers at Syracuse examined birth records and compared cesarean
delivery rates according to the number of malpractice cases per county. They
found that in places with a higher malpractice risk that there was actually
a slight decrease in c-sections.

. Harvard researchers compared cesarean rates to the actual hospital rates
of malpractice suits and found that, controlling for all other factors, a
woman who gave birth at a hospital with high malpractice rates was 30% more
likely to have a c-section. Except researchers also found that giving birth
at a hospital with a high c-section rate (and not necessarily malpractice
rate) increased the risk of having a c-section 10 times.

. Mark McClellan (current secretary of CMS) found that heart disease
expenses for the elderly grew only 5-7% less in state with tort reform
(expenses grew 24% per year in non-reform states, and 17% in reform states)
, and that the gains seemed to decrease after 5 years.

This research shows that, when researchers have been able to puzzle out ways
to measure it, they found very small rates of increased spending and
intervention due to "defensive medicine".

The bottom line is that while the evidence isn't crystal clear that
defensive medicine plays no part, there's nothing that shows defensive
medicine is dictating doctors' behavior. More contemporary research needs to
be done (the majority of these projects were in the late 1980's and early
1990's), but there's no indication of a rash of doctors performing
unnecessary procedures and tests because of their fear of frivolous
lawsuits.

January 10, 2006 in Medical Malpractice Myth | Permalink

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Here's an interesting (or not) blurb:   (downloaded from:
http://www.tortdeform.com/archives/2007/04/offensive_medicine_cost_us_all_1.html )

Justinian Lane
Offensive Medicine Costs Us ALL
Have you ever heard of defensive medicine? That's the term used by the
"reform" lobby to describe a physician ordering tests or procedures purely
to prevent litigation. Examples include MRI's and CT scans, cancer
screenings, etc. I've written about why I don't think defensive medicine is
bad for patients, and so has Greedy Trial Lawyer. The gist of both of our
arguments is that an ounce of prevention is worth a pound of cure; wouldn't
you rather your doctor err on the side of caution when treating you? "Family
Guy" also extols the virtue of excessive medical caution in the episode The
Tan Aquatic With Steve Zissou. From Wikipedia:
  "When Brian advises Stewie to "wait and see" whether or not he has cancer,
Stewie says "Jim Henson had a wait and see attitude, and look what happened
to him. Now we've got wrong-sounding Muppets," a reference to Henson's
failure to properly address a cold he had, which led to pneumonia, and
ultimately his death in 1990."

But this post isn't about defensive medicine. It's about offensive medicine.
Cyrus Dugger cited an example of offensive medicine in which his dentist
tried to push unnecessary procedures that were conveniently covered by Cyrus
' insurer. Cyrus declined the procedures, but undoubtedly some patients do
choose to have unnecessary services performed. While Cyrus' dentist and
other unethical doctors may practice offensive medicine, they're amateurs at
best. The real masters of offensive medicine are pharmaceutical companies,
which have lined their pockets with billions of dollars - including taxpayer
dollars - by pushing unneeded medications on healthy patients.


>From June 26-30 of 2005, The Seattle Times published "Suddenly Sick," a
chronicle of the pharmaceutical industry's campaign to convince healthy
Americans that they need to take prescription medication every day for the
rest of their lives. By exaggerating the likelihood of illnesses and
influencing the definition of diseases, pharmaceutical companies have been
successful in persuading healthy individuals to seek treatment for trivial
or nonexistent maladies. There's even a term for these healthy people: The
Worried Well.

"Suddenly Sick" explains that in the case of some illnesses, new guidelines
promulgated by doctors with financial ties to pharmaceutical companies have
classified millions of people as diseased. In fact, according to those
guidelines, three out of four Americans has a disease that should be treated
by prescription medication. One disease which had its definition broadened
is obesity. Under the new guidelines, Shaquille O'Neal is considered obese.
Now, if ever an individual could honestly say, "I'm not fat, I'm big-boned."
It's Shaq. Thankfully, Shaq never took phen-fen to treat his obesity.

Obesity isn't the only disease to have its definition expanded dramatically.
"Suddenly Sick" explains how lowering the thresholds for high blood pressure
has created a windfall for pharmaceuticals.

  "In recent years, expert panels from prestigious medical-research
organizations such as the World Health Organization (WHO) and the federal
National Institutes of Health (NIH) have called for lower thresholds for
blood pressure.

  Behind each of those panels were the giant pharmaceutical companies that
manufacture the new and expensive hypertension drugs.

  In May 2003, for example, an NIH panel recommended broader use of
hypertension drugs at lower blood pressures. Nine of the 11 authors of the
guidelines had ties to the drug companies (see chart).

  The drug industry welcomed the new treatment guidelines and marketed them
vigorously. Not surprisingly, as doctors followed the new guidelines and
treated hypertension at lower readings, sales of the newer drugs increased.

  Last year, patients and their insurance companies spent $16.3 billion for
blood-pressure pills, up $3 billion from five years earlier."

That's a sales increase of over 500% in five years. I don't know how much
the pharmaceuticals paid the doctors at the WHO and the NIH, but even if it
were in the millions, the pharmaceutical companies had an excellent return
on their investment.

So we have major pharmaceutical companies paying doctors who study disease
guidelines; those doctors recommend expanding the disease guidelines in such
a way that millions of patients would instantly be considered diseased.
Coincidentally, the pharmaceutical companies that paid the doctors just
happen to have products to treat the diseases. For some reason, few people
question the neutrality of the doctors and the validity of their
recommendations. Imagine if a group doctors on the payroll of various law
firms recommended expanding the definition of medical malpractice in such a
way that millions of patients would instantly be considered victims of
medical malpractice. Coincidentally, the law firms that paid the doctors
just happen to specialize in medical malpractice lawsuits. I bet few people
wouldn't question the neutrality of the doctors and the validity of their
recommendations.

I'm neither a doctor nor disputing whether the new guidelines promulgated by
pharmaceutical-paid physicians are beneficial. What I am questioning is
whether it makes sense to allow pharmaceutical companies to play such an
important role in determining the guidelines for the diseases their products
treat. How can pharmaceuticals with billions of dollars on the line be
expected to remain objective as to the benefits of their products? Should
doctors on the payroll of pharmaceuticals be prohibited from influencing the
definition of diseases? Or should those doctors have to disclose their
financial ties to pharmaceutical companies? These are all questions that we
as a society need to consider. "Suddenly Sick" presents evidence that
pharmaceuticals work to expand the definitions of disease to include truly
healthy patients. Even a small expansion in disease guidelines can lead to
thousands of people taking prescription medication they otherwise wouldn't.
That can lead to millions or even billions of dollars in sales for the
pharmaceutical industry. Who pays for these unnecessary prescriptions?
Taxpayers, in the form of Medicare funding, and insured individuals and
their employers in the form of insurance premiums. Unquestionably, there is
a substantial profit motive for pharmaceuticals to encourage the expansion
of disease guidelines. This profit motive can only have grown larger in
light of the aging population and the Medicare prescription drug coverage.

"Suddenly Sick" isn't the only resource chronicling the efforts of the
pharmaceutical industry to sell to the well. Journalist Ray Moynihan and
University of Victoria, British Columbia research Alan Cassels authored the
book "Selling Sickness: How Drug Companies Are Turning Us All into
Patients." Here is an article from those authors, entitled "Selling to The
Worried Well":





----- Original Message ----- 
From: "Eric Doerfler" <ericd at nightingale-project.com>
To: "'NP Info'" <npinfo at nurse.net>
Sent: Tuesday, September 25, 2007 8:54 PM
Subject: RE: [NPInfo] Edwards statement on malpractice
> Is there any evidence that such testing actually reduces awards, risk of
> suits filed, risks of suits going to trial, or differntial settlements?
> e.d.          > Oh, and I don't think of litigation all day long. That
would really bring me
> down, dude.
> From: npinfo-bounces at nurse.net [mailto:npinfo-bounces at nurse.net] On Behalf
> Of Jeffrey Hazzard
> Sent: Tuesday, September 25, 2007 10:10 PM
> To: ACC Listserv; npinfo npinfo; Tony L Moffitt; Judy Wightman
> Subject: [NPInfo] Edwards statement on malpractice
> Edwards "also pushed back against the notion that medical malpractice
> lawsuits were a significant factor in driving up the cost of healthcare,"
> adding, the "reality is that the costs associated with legal cases are
well
> under 1 percent of our healthcare system,"
> Congressional Quarterly (9/25,> Horrigan).
> -------------------------------------------------------- 
>       I take great issue with this statement.  The DIRECT costs may be <1%
> of the total health care outlay, but the INDIRECT costs (tests done only
for
> CYA purposes) are incalculable.  I estimated, when I was in primary care,
> that I was spending $1500 per day on tests that I thought had a low yield
> probability.  Principally, those tests were risk management tests.  This
way
> of thinking is so "in us" that we order tests without even considering it.
> I queried my coworkers closely and found that they, too, were ordering
about
> the same number of "conservative medicine" diagnostic tests (lab tests,
> imaging studies, consultations, etc.).  So, in our multiprovider practice
we
> were spending $10,000 or more, per day, defensively.  Virtually none of us
> make a medical decision without considering the legal implications.  I
know
> I think of litigation all day long.  I can think of few other businesses
are
> as tort-conscious as we are.
>       What do all of you think?
>        Just my perspective,
>                 Jeff Hazzard, Tampa