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Orszag's malpractice proposal, cont'd

A reader who researches health-care policy questions e-mailed to say he was not impressed by Peter Orszag's proposal to develop "best practices" checklists and then protect doctors who follow them from medical-malpractice lawsuits. The problem, he said, is that we've had zero success agreeing on what "best practices" are:

As someone whose research is on evidence-based medicine and agrees circumscribing docs decisions is a great way to lower costs and improve quality, you have way, way more faith in clinical practice guidelines than I do. They are mostly specialty societies trying to justify their existence.

When AHRQ said don't do meaningless back surgery they were almost shut down. Ditto USPSTF and mammograms. (They're reportedly still being muted.) When PSA screening was found at best marginal for lowering prostate cancer mortality the American Urological Assc said we should test PSA younger, b/c that's why the studies were negative. Negative trial -> recommend more utilization.

Much more importantly, I still think anyone who reads the article quickly will see it as being about limiting malpractice, about which he is totally, totally wrong.

Another commenter tried to apply Orszag's proposal to a specific case:

One malpractice case that I know about involved a cancer patient who died. There are published protocols for treating various types of cancer. The primary reason that the doctor was sued was that she didn't follow the protocol. The doctor diagnosed the cancer incorrectly, so if he had decided to follow the protocol she would have been following the wrong one. Had that occurred, I don't know whether the doctor would have been sued for following the wrong protocol; I'd say the odds are against it. Had the doctor made the correct diagnosis and followed the relevant protocol, she would not have been sued.

Orszag's proposal would not have changed the incentives for the doctor very much. If the doctor had followed the treatment protocol, she could still have been sued over the erroneous diagnosis. I don't think that Orszag's proposal would change that. If she had made a correct diagnosis and followed the protocol, any malpractice suit against her would have been without merit. I don't think that Orszag's proposal would have changed that, either.

For those who want more, commenter Eunomia recommended this paper by Texas law professor Ronen Avraham as a more sophisticated and fully-fleshed out argument for using standardized-treatment guidelines to immunize doctors from medical malpractice suits.

By Ezra Klein  | October 25, 2010; 9:00 AM ET
Categories:  Health Reform  
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No one is commenting yet on the blowback or unintended consequences of this proposal. It would set back medical research and experimentation 50 years. Doctors would be afraid to deviate in any way from guidleines, in spite of ample evidence that there are sub groups in society who do not achieve the same results with generalized procedures effective on society as a whole.

Posted by: 54465446 | October 25, 2010 9:56 AM | Report abuse

really it's simply

LImit awards to 5 times the pay of the CEO of the insurance company, benefits and retiredment included.

Posted by: newagent99 | October 25, 2010 10:13 AM | Report abuse

I call BS on this.

Of course there aren't robust practice standards. Why in the world WOULD there be robust practice standards when doctors don't have any reason to follow them?

The payment system isn't set up to incentivize this, and the malpractice system isn't set up this way either. Sure, specialty groups make a valiant effort at this, and we have certainly seen where large integrated care delivery systems (Kaiser, VA) have done a great job improving outcomes by standardizing protocols. But by and large, this area of medicine is a backwater because healthcare is still run with little scientific rigor, and every doctor thinking he is doing just the right thing for his patients in spite of having no way to actually track or prove this fact.

I mean, let's take a protocol as simple as handwashing. We know for a fact that there is ZERO downside to handwashing, and it's a great way to prevent infection. It is ALWAYS the right thing to do. Yet a stunning percentage of the time, doctors just don't do it when they enter a patient's room. Let's add in doctors wearing ties and white jackets that transmit all kinds of organisms from hospital room to hospital room.

Explain to me why handwashing compliance is not 100% among doctors? Explain to me why they are still wearing ties and white coats, given that these are known vectors for disease?

I get it that treating cancer is complicated and there are absolutely different judgments to be made, and you can't just follow a playbook. And hey, sometimes diseases have bizarre presentations or they're terribly complicated and sometimes we just don't know what to do. Sometimes you have to just guess. Other times you have to go against the protocols because they're just not appropriate in this situation. That's life (and, um, sometimes it's a learning opportunity to make the protocols better..).

But it's nonsense to suggest that the wild west situation we currently have when it comes to treating illness is a feature, rather than a bug of our healthcare system. Because there are a LOT of situations where it's perfectly clear what you should be doing--wash your dang hands!--and doctors still can't get it together to do that. Malpractice protection could certainly help in these areas, and it would help us learn more about what works best so we can do more of that, and less of what doesn't work.

Posted by: theorajones1 | October 25, 2010 12:11 PM | Report abuse

Jones makes a great point about handwashing. I think that relates more to habit and human nature. You can substitute speeding for hand washing. Driving the speed limit has Zero downside and is always the right thing to do. Would save countless lives and gas but everyone speeds. When we don't see direct benefit for spending a little extra time doing it, it tends to be ignored.

I like the proposal, it tries to tie two problems together in one solution. We all want more evidence based care, better results, lower cost, less frivolous lawsuits and this is at least an attempt to do this. The current medical system doesn't do all of us well. The current malpractice system doesn't as well with the majority of those harmed receiving nothing and those that do being given less than half of every dollar awarded.

Posted by: Jenga918 | October 25, 2010 12:39 PM | Report abuse

If you really want a better overall system, everyone has to give something up. The ACA forced some to give up more than others doctors on one end and hospitals and big phama on the other. The only group unscathed that has no data to back up being left alone, our malpractice tort system.

Posted by: Jenga918 | October 25, 2010 12:50 PM | Report abuse

The other thing to change is the rules for "experts" in malpractice litigation. They should be required to be familiar with peer-reviewed literature, and evidence-based medicine, and refer to it in their testimony. Also to accept the opposition's references to other peer-reviewed literature as a basis for defense. Independent, court-appointed experts who testified on this basis rather than competing "hired guns" would do more to fix the malpractice lottery than a cap on damages. Physicians really need help at the low end of the liability spectrum. They are regularly put up as poster children for tort reform as cover for big corporations who make shoddy products, pollute or poison the public. Exxon, BP, Merck and Massey have almost unlimited legal representation and time. the only thing they can't bear is full unlimited liability for their misdeeds.
Take care of physicians' tort problems and let the big corporations hang out to dry.

Posted by: awmarch1 | October 25, 2010 10:28 PM | Report abuse


I too don't understand why doctors, of all people, don't wash their hands. The doctors and their white coats and ties are a big reason MRSA is such a horrible problem, especially in our hospitals. I've heard some physicians claim so much handwashing (before examining each patient) causes their hands to be chapped. Oh puleez! There are some great medicated derma lotions for that.

Ethic Soup has some excellent posts on the subject, like the following two:


Posted by: s_mceachern | October 26, 2010 1:13 PM | Report abuse

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