I read the USA Today every day. It comes to my house. I like the paper for several reasons: first, because they report news and leave the commentary for the editorial page. Second, because I like the puzzle page. Third, because on the editorial page, they present two opposing sides. Yesterday, they published (29 December, page 10A) two sides of the part of the health care debate which focuses on lawyers, malpractice and medical errors.
In the interest of full disclosure, back in the late 80's and early 90's, I used to occasionally review malpractice cases for a law firm, to determine if cases they were considering taking had medical merit. I testified in a number of cases, and I testified for both plaintiffs and defendants, depending on which side I considered correct.
One of the big discussions in the health care arena next year will relate to medical errors. And this is important, as medical errors cause harm, and sometimes death. However, too many people believe that if there is a bad outcome, someone needs to be blamed, and they do not understand that "bad outcome" is not an absolute equivalent to "medical error."
There is no medical procedure with 0% risk, and no medication with 0% side effects. There are some alternative treatments that can cause no harm under any circumstances, but that's another topic for another day. Even something as basic as a lowly aspirin can cause gastrointestinal bleeding in a susceptible patient. You wouldn't want any surgery without anesthesia, but sometimes people die because of problems with the anesthetics used. Sometimes a high level of risk is welcomed by some patients: the case of experimental drugs in end stage cancer is an example of that. Sometimes babies just die as they are being born, and it just plain happens.
What the USA Today did in their presentation was to give information that's just plain wrong. The discussion is important, but it's more important that the facts and their interpretation is correct. The paper's position begins reasonably enough: that doctors practice a lot of defensive medicine to avoid litigation, and they cited the true statistics that one in seven ob-gyns have stopped delivering babies, that 75% of ob-gyns have been sued, that 83% of docs practice defensive medicine, and that defensive medicine costs at least $1.4 billion a year. Their cited potential changes include arbitration, specialized health courts, tougher error-reporting system, and the Obama-Clinton 2006 proposal (died in committee) for safe harbour in-hospital error discussions.
You might want to re-read that paragraph and ask yourself: it is at all reasonable that 75% of all ob-gyns could possibly be guilty of malpractice? Three-quarters of them? The stat is correct, it's the underlying fact that's insane.
And then there was the opposing view, from the president of a trial lawyer trade group. I'm going to skip the arguments he made, and get right to the part that set my teeth on edge: "97% of medical malpractice claims had merit." The specious part of the argument is how you define the words "claim" and "merit".
I once worked on an evaluation case where a woman fell in her kitchen, and blacked out. When her son found her, he called 911 and she was taken by ambulance to the hospital. By the time she got there, she was conscious. They did appropriate tests and determined that she had had a TIA (a mini-stroke) and that she had an operable aneurysm. While operable, they told her that the operation was not always successful, and showed her a huge document which spelled out the risks. She asked if they recommended the surgery, and the docs said yes. She declined the surgery. A few months later, the aneurysm burst, and she died. Her husband sued. He said that if the hospital had insisted that his wife have the operation, she would not have died. Well, that's a claim, but does it have merit?
Here's what they're not telling you. If it went to court, and the plaintiff won, that would be a "claim" with "merit". If they went to court and the defendants won, it would still be a "claim", and the trial lawyers would say that the case had "merit" since the court agreed to hear it. If the hospital settled ahead of time, on advice of their insurance company, it would not be considered a "claim", or rather, it wouldn't be included in the statistic, because in most states, those records are sealed.
Back to the USA Today position: what they're leaving out is that the insurance companies encourage the tests under "Standard of Care" (SOC). Example: I have an ulcer, not my first. My ulcer causes chest pains, as usual. My doctor is obligated to run an EKG "just in case" this time it's actually a cardiac problem. That's SOC, and he's committed. Is that defensive medicine for him, or for me? Where do you draw the line for the right thing to do?
Certainly, there are some actions that can decrease medical errors. Bar-coding individual pills and matching the bar code to the coded bracelet on the hospital patient's wrist can cut medication errors astronomically. Hand washing by all medical staff before and after every patient they touch (and NOT with antibacterial soap) cuts preventable hospital infections more than anything else.
But what USA Today is omitting is who defines SOC? And remember when you think about it that SOC includes treatments. Many childhood vaccines are SOC, you can't get your kid into school without them. (State regs vary on this, sometimes you can get a medical or religious exemption depending on where you live.) Is that a medical SOC, one set by public health necessity, or something arrived at because of the money made on vaccines?
When an insurance company sets an upset limit of 12 visits to a psychiatrist, is that SOC for the patient, or for their unwillingness to pay more for someone who may be severely depressed or schizophrenic? Should that be an insurance decision, or one made by the psychiatrist?
What both sides of the argument missed is that the best care is that which matches the medical needs of the patient. Not the legal system, the state nor the insurance companies. It should be predicated on that old "above all, do no harm" oath.
I read the USA Today every day. It comes to my house. I like the paper for several reasons: first, because they report news and leave the commentary for the editorial page. Second, because I like the puzzle page. Third, because on the editorial page, they present two opposing sides. Yesterday, they published (29 December, page 10A) two sides of the part of the health care debate which focuses on lawyers, malpractice and medical errors. 
