NEJM: malpractice reform didn't reduce "defensive medicine" in EDs

[cbrons]

Wondering what your thoughts are on this latest article from the Oct. 16 NEJM: http://www.nejm.org/doi/full/10.1056/NEJMsa1313308

"Conclusions
Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates."

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[Birdstrike]

Simple: The reforms didn't go far enough. Look to the recent shady case in Georgia: http://www.epmonthly.com/features/c...-slippery-slope-for-dubious-expert-testimony/

I'm in one of those three states studied. I know many doctors that have been sued and many sued for bogus reasons. One recently lost for multimillions, above the state cap somehow. The threat of being sued, for next to no reason has in no way shape or form been removed even in those states mentioned.

 

[name?]

It's also probably because we aren't simply afraid of the financial risk, but also the emotional threat of being sued while doing the best we can.

 

[henge]

Michigan has had multiple rounds of medmal tort reform, which have drastically reduced the number of cases filed and capped payouts. The first, and biggest, round of reforms was in 1993 and included procedural reforms (concerning expert witness testimony, etc.) and caps on non-economic damages (generally limited to $625,000 [COLAed] for serious cases [e.g., paralysis], and $350,000 [COLAed] in more typical circumstances. The number of suits filed and maintained plummeted:

"As a result of the legislative changes, and judicial interpretation thereof, many medical malpractice lawsuits were dismissed or never filed. Consequently, in Michigan there has been a 75 percent decrease in the number of medical malpractice cases filed from 1986 to 2006." Different Directions, Todd C. Berg, Esq., July 16, 2007, Michigan Lawyers Weekly. http://64.233.167.104/search?q=cache:GKnUtYbQwxAJ:www.dueprocess.tv/cooley/medical_malpractice.pdf "number of medical malpractice lawsuits filed in michigan"&hl=en&ct=clnk&cd=8&gl=us&client=firefox-a

Another analysis found that "From 2000 to 2007, the number of medical malpractice claims dropped 77 percent to 263 in 2007 from 1,142 in 2000, said the Michigan Department of Insurance and Financial Services." Crain's Detroit Business, May 12, 2013.
http://www.crainsdetroit.com/articl...anges-in-malpractice-law-still-being-disputed

One would expect that such big decreases in litigation would reduce defensive medicine. I don't have data on that, but there is data for medmal insurance premiums. While the number of medmal cases dropped, and caps prevented huge payouts, medmal insurance premiums did not decrease and generally increased from 2000-2005 (albeit, for that period, more slowly than the national average, according to the source cited). See Exhibit 18, Evaluation of the Michigan Medical Professional Liability Insurance Market 2000-2005, Michigan Office of Financial and Insurance Regulation
https://michigan.gov/documents/dleg...L_LIABILITY_INSURANCE_MARKET_RPT_258056_7.pdf
(Also, if you want to see who gets sued for what, who sues (by coverage source) and what the payments are, on an aggregate non-anecdotal basis, Exhibit XI and XII of this report have some interesting data
http://www.michigan.gov/documents/dleg/Michigan_Medical_Liability_Ins_Rpt_297694_7.pdf

The jump graphic in Crain's article shows premium data for Detroit only, and shows that Og/Gyns did see a decrease in premium costs from 1991 to 2012, while internists and surgeons saw an increase of ~40-50%, broadly comparable to the national increase for all physicians for that period (according to the insurance source cited).

 

[doctorFred]

god peter rosen is such a sellout.

 

[The White Coat Investor]

Not a huge surprise. Defensive medicine isn't just to avoid lawsuits. It's also to avoid complaints and avoid hurting people. You worry about that 1% chance that it's something bad, so you rule it out with another test or an admission or whatever.

 

[EMIM2011]

Not a huge surprise. Defensive medicine isn't just to avoid lawsuits. It's also to avoid complaints and avoid hurting people. You worry about that 1% chance that it's something bad, so you rule it out with another test or an admission or whatever.

By hurting the other 99% with an unnecessary test...

 

[TooMuchResearch]

By hurting the other 99% with an unnecessary test...

Testing isn't necessarily harmful.

Testing 100 to save 1 is probably worthwhile.

 

[EMIM2011]

Testing isn't necessarily harmful.

Testing 100 to save 1 is probably worthwhile.

So you think that irradiating 100 25 year-old patients with a CT chest to find 1 subsegmental PE is worth it? How about 100 "positive" stress tests leading to cath to prevent one MI? Or 100 admissions for "serial exams" to find one true abdominal pathology? CYA - sure. "Not harmful" - no.

 

[The White Coat Investor]

By hurting the other 99% with an unnecessary test...

Define unnecessary. You mean negative? Because you don't know it's negative a priori. If you did, it would be unnecessary. Like ordering a d-dimer on a PERC negative patient. Defensive medicine isn't about ordering "unnecessary tests." The world isn't that black and white. There is a lot of uncertainty in emergency medicine, and some doctors and patients tolerate it better than others, for better and for worse. Does that guy with the worst headache of his life really need a CT and LP? Probably not. Most of them are negative, right? Sure, if he's got a fever, a serum WBC of 22, a stiff neck, altered mental status, and severe vomiting, then he probably needs that LP. But that isn't the patient we're seeing most of the time. We're seeing the patients with a 0-5% chance of actually having something we're going to find on CT/LP. What do you do with them? That's where defensive medicine kicks in. You're defending yourself medicolegally, defending the patient from a rare poor outcome, and defending your contract by keeping your customer service scores high by offering patients tests they desire.

Also, keep in mind that you sometimes HELP people with an "unnecessary" test.Think about finding a tumor early, or finding an aortic dissection or a PNA invisible on CXR you didn't expect on that PE scan. Or the kidney failure or hypercalcemia you found because you ordered an unnecessary CMP on a chest pain patient.

What I'm saying is there are reasons to do things a patient probably (but not necessarily) doesn't need besides just trying to stay out of court. There are also reasons to do them in the ED when they could be done as an outpatient a couple of weeks from now. That's why I propose that "defensive medicine" didn't change when the only change was to make it harder to sue docs.

Should we do all we can to avoid ordering unnecessary tests? Absolutely. But anyone who thinks all of this is simple doesn't understand the problem.

 

[The White Coat Investor]

It's also probably because we aren't simply afraid of the financial risk, but also the emotional threat of being sued while doing the best we can.

The truth is there is very little financial risk. Most suits aren't successful and the vast majority of those that are are covered by malpractice insurance.

 

[RustedFox]

Also, keep in mind that you sometimes HELP people with an "unnecessary" test.Think about finding a tumor early, or finding an aortic dissection or a PNA invisible on CXR you didn't expect on that PE scan. Or the kidney failure or hypercalcemia you found because you ordered an unnecessary CMP on a chest pain patient.

This. All day long at one of my job sites. "Medically complicated senior citizens" are... complicated.

Scan 'em. All day long. I've had at least a dozen dispo's change because of discrepancies between CXR and CT chest. Big time.

 

[EMIM2011]

I am not arguing with you guys. We are all doing it. It's how we "grew up", what we learned in med school and residency. That's why malpractice reform does not lead to decreased testing/spending right away. I'll take a generation, at least. Just don't make yourself feel too good about ordering 100 unnecessary PE-CTs because you find an occasional early stage malignancy....you've probably caused more malignancies than you found ;-).

 

[Birdstrike]

I am not arguing with you guys. We are all doing it. It's how we "grew up", what we learned in med school and residency. That's why malpractice reform does not lead to decreased testing/spending right away. I'll take a generation, at least.

It's true that "zero miss" is ingrained in our thought processes. I don't think it will ever be out of doctors' decision making. Unless there's zero risk of being sued, docs are more likely just to decide, "It's just easier to get that test." If there's any chance of even a powerball-suit, it's just easier to test. As a society, this is what's been chosen. Patients don't see the risks of over testing and I don't think they ever will. They view any test as a "safer than sorry" proposition. I think tort reform is very much needed, but for other reasons more important than test reduction. Doctors shortages are one reason. There's been counties and states that have had such toxic med-mal environments there are critical shortages in certain specialties. No one wins there.

 

[two guys]

As far as the NEJM "article" - What a waste of time. Would anyone expect a change in 3 states over a ten year period? Nonetheless, they actually DID find a decrease in GA. I don't understand who thought this was a serious research question. It's like studying if starting Kindergarten a year earlier changed college GPA 5 years after the change was made. I looked through the author list, a few physicians and a few lawyers. The senior author gets paid by the RAND corporation for Civil Justice which includes funding from "a range of entities representing a diverse set of perspectives related to the civil justice system, including plaintiff and defense attorneys, consumer and labor groups, corporations, and foundations." You've got to wonder what there is to gain from this paper. The only clear goal I can see is to say tort reform is unnecessary and ineffective. That would be a ludicrous interpretation of this "article."

Perhaps a more fair question would be "Is there any benefit to our current malpractice environment?" or "do states with huge payouts and no cap limits have better health care?"

(I'm pretty sure those studies have been done and don't advance the authors goals so they made this bs "article").

 

[Birdstrike]

As far as the NEJM "article" - What a waste of time. Would anyone expect a change in 3 states over a ten year period? Nonetheless, they actually DID find a decrease in GA. I don't understand who thought this was a serious research question. It's like studying if starting Kindergarten a year earlier changed college GPA 5 years after the change was made. I looked through the author list, a few physicians and a few lawyers. The senior author gets paid by the RAND corporation for Civil Justice which includes funding from "a range of entities representing a diverse set of perspectives related to the civil justice system, including plaintiff and defense attorneys, consumer and labor groups, corporations, and foundations." You've got to wonder what there is to gain from this paper. The only clear goal I can see is to say tort reform is unnecessary and ineffective. That would be a ludicrous interpretation of this "article."

Perhaps a more fair question would be "Is there any benefit to our current malpractice environment?" or "do states with huge payouts and no cap limits have better health care?"

(I'm pretty sure those studies have been done and don't advance the authors goals so they made this bs "article").

Wait, what are you doing? Have you been labeled an "expert" in this area by the current medical-political establishment? If not, you clearly are not qualified to question this, or any other expert dogma. Please revert to blindly trusting those labeled as experts or anyone with an important sounding and intimidating title. Bias and conflict of interest only inflict us little people. Word to the wise: Please turn that cerebral cortex off ASAP, as using it could be considered extremely offensive to others. /EndSarcasmFont

 

[gman33]

unless the risk of getting sued is zero, I don't think anything will change.
Getting sued eats up large chunks of your time for years.
Win or lose, you already lost.
The financial component isn't that big a component.
Your insurance will be footing the bill in almost all cases.

I order plenty of tests that are "not needed" every day.
Problem is, I don't know when they will come back positive.
The head CT on the guy that comes in intoxicated.
Almost always negative.
I had a shift this week where 2 came back positive.
Both of those patients would be dead now if those scans weren't ordered.

 

[NinerNiner999]

As has been said countless times, Emergency Medicine is a numbers game - a game of probability and statistics, where odds of diagnosis come into play more than any other speciality. Any busy ER with 100,000 volume or more will see several "uncommon" diseases each year just based on volume and statistics. We will perform more "rare" procedures each year for the same reason (Cric, Thoractomy, etc). Each of our "100" patients who present (referencing the above quote) comprise a very small portion of that total patient volume. So the odds are that yes - if we don't test the majority of the patients we see for the majority of diseases out there, we will miss them a majority of the time.

I guess when you look at it that way, we can actually miss a lot without aggressive testing. I keep that in mind every time I see 1 of my 5000 patients annually...

 

[EMIM2011]

http://jama.jamanetwork.com/article.aspx?articleid=1921690

 

[e30ftw]

The head CT on the guy that comes in intoxicated.
Almost always negative.
I had a shift this week where 2 came back positive.
Both of those patients would be dead now if those scans weren't ordered.

are they really alive now?

I assume you mean two whopping SDH.

did they get evacuated? did you follow up pt outcome?

I've found tons of SDH on people who fall down and go boom. I am always happy to find them and I scan everyone who is old and drunk. I don't really know if my having found their subdural collection made a difference in their long term productivity. Most people I have followed up on get no medical therapy and are discharged 24 hrs after hospital admission with a $10k hospital bill and nothing to show for it other than a CD of some images.

I have seen multiple pts gone to the OR with nsgy for a sdh evacuation including those where I saw pt in ER ordered CT called nsgy, went off-service to ICU month, rounded on pts for >2 wks where they got trached/peg'd swanned/cvp'd/ every-other-medical-procedure and ended up going to a long-term care facility...

not really a life-saved.

fwiw I CT everyone with any hint of intox/neurodeficit/trauma etc keeping in mind appropriate clinical decisionmaking rules and etc but I feel like I'm just pissing taxpayer money away and making all hcw depressed when those pts present with obvious deficits and no reasonable family who will end up ct/OR/icu/cvl/aline/trach/peg/ltfc/uti/sepsis/$1mil/familyconference/code/ecmo/$2mil -> death.

 

[Doctor Bob]

I feel like I'm just pissing taxpayer money away and making all hcw depressed when those pts present with obvious deficits and no reasonable family who will end up ct/OR/icu/cvl/aline/trach/peg/ltfc/uti/sepsis/$1mil/familyconference/code/ecmo/$2mil -> death.

Some of this is uncomfortableness on individual doctor's parts to be blunt with the family. It is ok to go to a family and say "this is futile, they are going to die no matter what. I will not reintubate them when they decompensate." (couch it in whatever terms you want). The renal people are pretty good at this. They decline to dialyze people all the time when the clinical trajectory is hopeless. Along those lines we can decline to intubate/give pressors, etc.

Now... I realize I'm posting this in an EM forum and this conversation isn't often feasible in the ED. But I would need more than 2 hands to count the number of people I have made comfort care within 6 hours of arriving to the ICU within the past 2 weeks. I used to do it in the ED as well... when the end-stage cancer hospice patient comes to the ED because their family wants them to be intubated at 3am for respiratory distress I've held the line and refused. It takes a lot of time though and in a busy ED it's tough to devote that much time to a family discussion. It's easier to intubate, admit to the ICU, and then move on.

 

[Apollyon]

are they really alive now?

I assume you mean two whopping SDH.

did they get evacuated? did you follow up pt outcome?

I've found tons of SDH on people who fall down and go boom. I am always happy to find them and I scan everyone who is old and drunk. I don't really know if my having found their subdural collection made a difference in their long term productivity. Most people I have followed up on get no medical therapy and are discharged 24 hrs after hospital admission with a $10k hospital bill and nothing to show for it other than a CD of some images.

I have seen multiple pts gone to the OR with nsgy for a sdh evacuation including those where I saw pt in ER ordered CT called nsgy, went off-service to ICU month, rounded on pts for >2 wks where they got trached/peg'd swanned/cvp'd/ every-other-medical-procedure and ended up going to a long-term care facility...

not really a life-saved.

fwiw I CT everyone with any hint of intox/neurodeficit/trauma etc keeping in mind appropriate clinical decisionmaking rules and etc but I feel like I'm just pissing taxpayer money away and making all hcw depressed when those pts present with obvious deficits and no reasonable family who will end up ct/OR/icu/cvl/aline/trach/peg/ltfc/uti/sepsis/$1mil/familyconference/code/ecmo/$2mil -> death.

Remember this, all y'all youngun's - 4 groups of people that will screw you EVERY TIME in the ED - 1. the very old, 2. the very young, 3. the very drunk, and 4. the very crazy. The academic types will give you all sorts of BS about not scanning this and that, but remember that these 4 groups will screw you every time. (And it's not just scanning, but just have an increased awareness and decreased threshold for working up these groups.)

 

[TooMuchResearch]

Remember this, all y'all youngun's - 4 groups of people that will screw you EVERY TIME in the ED - 1. the very old, 2. the very young, 3. the very drunk, and 4. the very crazy. The academic types will give you all sorts of BS about not scanning this and that, but remember that these 4 groups will screw you every time. (And it's not just scanning, but just have an increased awareness and decreased threshold for working up these groups.)

Some of our academicians also work in the community, so when I say "The drunk in room six mumbled his neck hurts. I'm going to scan him, and it's going to be negative," the attending says, "Sounds good. Do it and get him out of here."

 

[engineeredout]

Some of this is uncomfortableness on individual doctor's parts to be blunt with the family. It is ok to go to a family and say "this is futile, they are going to die no matter what. I will not reintubate them when they decompensate." (couch it in whatever terms you want). The renal people are pretty good at this. They decline to dialyze people all the time when the clinical trajectory is hopeless. Along those lines we can decline to intubate/give pressors, etc.

This came up in the discussion I had the other day with some people. I think we really have to hand it to the nephrologists. I'm an IM resident as well and do a lot of time in the ICU. So I've had many opportunities to make the call to nephrology about 98-year-old septic grandma with renal failure. I think it takes a lot of balls for them to be able to say no we're not going to dialyze, it isn't going to make any difference whatsoever in the patient's outcome. It seems like it's a lot harder for the rest of us to decide not to intubate and not to start pressers and to withhold futile care.