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Damage Caps and Medical Malpractice VII

My next set of posts will be on the impact of damages caps on access to medical services. Because it is hard to measure access directly, and most of the available measures lack political salience, the debate usually focuses on the number and specialty of physicians practicing in the state. This is a problematic measure for all sorts of reasons, but let's just take it as a given for now.

The focus can get extremely specific. In the debate over enacting a damages cap in Illinois (ultimately enacted in 2005, and currently under review by the Illinois Supreme Court), as this article observes, "the phrase 'there are no neurosurgeons south of Springfield' came to represent the threat of the medical liability issue. . ."

This claim was picked up and repeated by physicians, legislators, and tort reform advocates. Consider a few examples.

There's this article, titled "Illinois physicians say insurance rates are driving them out of state," and quoting a family physician (Dr. Mark Dettro):

"We are losing all these doctors to other states where they have caps on pain and suffering," Dettro said. "There will no neurosurgeons south of Springfield in Illinois. If you have a car wreck in Southern Illinois then the odds aren't very good for you."

Dr. Ed Ragsdale was quoted to the same effect in this article:

This has been an uphill battle. We've lost all our neurosurgeons south of Springfield and it's even affecting those in Chicago."

It wasn't just doctors. Legislators picked up on this talking point. U.S. Representative Mark Steven Kirk issued a press release that repeated the claim, and asserted that the problem was spreading:

South of Springfield, there are no neurosurgeons treating patients suffering from head traumas," said Kirk. "This crisis of care is now spreading to Chicago's suburbs. With only three neurosurgeons caring for patients in Lake County, we face the growing threat that our doctors will not be there when we need them most. If we do not enact reforms soon, patients will die.

Tom Cross, the Illinois House Republican leader repeated the claim in a eight page briefing package on the need for medical liability reform.

Finally, a prominent magazine for hospital trustees, repeated the claim and provided some geographic context.

According to the American Association of Neurological Surgeons, high malpractice premiums mean there are currently no neurosurgeons practicing south of Springfield, Ill.--an approximately 200-mile gap to the Missouri border.

You hear variations of such claims a lot in tort reform debates. I'm going to spend some time outlining what we found in Texas when we took a look at the access issue. But first, let me make a few preliminary points about such claims. Here's a couple of questions worth asking, the next time you hear a claim like this:

1. Is the claim true? Are there, in fact, no neurosurgeons in Illinois south of Springfield? As far as I can tell, this appears to have been an accurate claim — but anyone who spends any time around political debates knows that the claims one hears sometimes bear little resemblance to objective reality. So, its worth asking "how do you know?" The fact that the American Hospital Association issued a undated fact sheet that says there is one neurosurgeon south of Springfield, and President Bush gave a speech on January 5, 2005, stating that there were two neurosurgeons practicing south of Springfield suggests that some additional fact checking might be in order.

2. Even if the claim is true, is it framed in a way that is nonetheless misleading? Might using state borders (no neurosurgeons in Illinois south of Springfield) to define the issue be problematic, when demand for medical services does not necessarily respect those borders? Carbondale, Illinois, where Southern Illinois University School of Law is located, is 176 miles by car from Springfield, and 107 miles by car from St. Louis. If it turns out there are plenty of neurosurgeons in St. Louis, should we care (as much, or at all) that there are no neurosurgeons in Illinois south of Springfield?

3. To what extent is the in-state demand for neurosurgical services being met by other specialists? This question is not applicable to a fair chunk of what neurosurgeons do — particularly in trauma cases — but it is worth asking about access claims regarding many other specialties, where the same or substitute services can be performed by other specialists.

4. How tight is the fit between the remedy and the problem? If we enact a damages cap, will we get more neurosurgeons south of Springfield? How many more? Will they be good neurosurgeons? Could we get too many neurosurgeons south of Springfield?

5. If we are convinced we want more neurosurgeons south of Springfield, Is a damages cap the best way to do that? Would a direct subsidy for neurosurgeons willing to locate south of Springfield be more cost-effective? If we have a fixed amount of $$ to spend on the problem, is it better spent on subsidizing relocation of neurosurgeons, or of patients needing neurosurgery (by subsidizing a system of air ambulances, for example)?

6. What are the other consequences of adopting a damages cap, apart from the effect on the supply of neurosurgeons south of Springfield? What will the effect be on other specialties, and the way in which health care is delivered? What will the effect on patients?

These are the kind of questions that it often makes sense to ask about policy initiatives — particularly ones framed by the use of salient anecdotes, such as "there are no neurosurgeons south of Springfield."

Dave Hardy (mail) (www):
Two thoughts:

1) My sister recently had to undergo emergency spinal surgery here, in Tucson, an urban area of near a million, and there was only one specialist working that weekend (he was booked solid); she had to be ambulanced to Barrows in Phoenix. If med-mal policy costs were a factor, nobody mentioned it. They mentioned the closing of the last trauma center in town (I believe because it proved nonprofitable, uninsured patients and all that).

2) If policy costs were a factor, I'd agree that a modest subsidy for docs in certain areas were the logical solution. Given the costs of medical school, I suspect a student loan forgiveness program would solve the problem quickly.

3) A friend who is a medical director in a rural area has noted that it's hard to lure docs there simply because (while the economics are great, pretty good pay and quite low cost of living), many folks don't want to live in small towns.
12.27.2008 12:33am
cathyf:
The US used to have a program which gave a green card to a foreign physician who worked for five years in an underserved rural area (basically everything south of Springfield is rural, except for that part of Illinois which is a suburb of St. Louis.) That program was eliminated after 9-11. I would be suspicious of any claim of linkage between rural areas losing doctors and malpractice -- it is far more likely that the rural doctor loss comes from losing their best source of new doctors.
12.27.2008 3:09am
lonetown (mail):
The question is irrelevant.

What should be known is how many are needed there and secondly if they are not there, why not.
12.27.2008 6:24am
I know (mail):
Neurosurgeon expert witnesses routinely charge $1,000 per hour to review medical records, and $10,000 per day for court testimony.

The national neurosurgeon accrediting board now reviews the malpractice testimony of neurosurgeons who testify against other neurosurgeons, with the threat of revoking the certification of doctors whose testimony they can discredit (I'm not sure exactly what standards they use). The national OB / Gyn and Orthopaedic Surgery boards now do the same.

Surgeons who loose board certification also loose hospital privileges and thus can no longer make a living.

The medical literature admits that medical malpractice kills about 100,000 hospitalized Americans per year. Not every doctor who testifies for the plaintiff is a greedy hack. But the threat of loosing your license, or of spending time and money and stomach acid going through the tendentious testimony "review" process has frightened many honest testifiers out of service.

Ever notice how when they're putting some colored kid away for decades for five $10 rocks, the courts work fine; but when they cost rich corporations money, the flow of profit sparing "reforms" --including legal witness intimidation--is endless?
12.27.2008 9:16am
nutbump (mail):
If number of doctors south to Springfield is an issue, why don't the government just allow foreign doctors to come to America permitting them to practice a medicine if they meet certain criteria (i.e. pass medical exams).
Somehow it is perfectly fine to import millions of IT engineers without asking any questions, but is not ok to do the same for foreign doctors.

The answer is that american doctors do not want foreign doctors to be in America, because it will depress their wages. So doctors in U.S. a have unique right (granted them by the government) it is to limit number of doctors entering to the market.

Every year Medical association establish a quota on how many doctors allow to be trained.
That is it, that is explanation why we do not have enough doctors in the United States.
12.27.2008 10:06am
calmom:
In Illinois, the juries around St. Clair County and Edwardsville, in Southern Illinois were infamous for huge awards. And I know that Belleville's Memorial Hospital in St. Clair County had to close some services because they could not keep doctors due to high medical malpractice awards and rates.

But Chicago is also notorious for huge jury awards and there are nuerosurgeons in Chicago. It must be that they can charge enough there to cover the malpractice but in less affluent Southern Illinois they can't.

The other aspect is that if I had a serious condition like a brain tumor and lived in Belleville, I would head over to Barnes Hospital in St. Louis for some of the finest medical care in the country. It's only a 30 mile drive.
12.27.2008 10:27am
p. rich (mail) (www):
Let's begin with a look at AMA policies and the political activities of the American Association for Justice.
12.27.2008 11:15am
another_perspective:
Hi David,

In this set of posts on "access to medical services" are you going to post data on where USA citizen AND USA trained medical doctors (not just USA trained doctors because some medical students at USA medical schools are foreign born) are coming from (e.g. parent is a doctor v. not a doctor, etc.), applications per medical school slot, etc.? These factors impact access.

BTW, Dave Hardy item numbered 3 is so very true. I have practiced medicine in a rural area and I could not get anyone worth having to seriously consider the area despite great reimbursement, etc. Unfortunately, medical training is very high tech and many physicians are not comfortable with low tech solutions.

Also, I have thought, but have not seen a study on this topic, that great physician care in rural areas often comes from specialities overpopulated nationally. These specialities have physicians willing to look off the beaten path to make a living.
12.27.2008 11:43am
Retired Early (mail):
If number of doctors south to Springfield is an issue, why don't the government just allow foreign doctors to come to America permitting them to practice a medicine if they meet certain criteria (i.e. pass medical exams).
Somehow it is perfectly fine to import millions of IT engineers without asking any questions, but is not ok to do the same for foreign doctors.


Hellooo, they already to this. In the USA, right now, half -- HALF -- the doctors in training in internal medicine and FP are foreign medical graduates.

IM and FP training to board certification takes 7 post-college years. As an attending, work weeks are typically 60 hours, with every 4 - 6th night on call. HIPA and billing regulations cut productivity by 1/2 to 2/3, and year after year Medicare saves money by cutting reimbursement. We are now well past the point where primary care medicine is no longer an attractive career. The solution is to bring in foreigners to fill all the medical doctor jobs Americans just won't do.

Obama, no doubt, will regulate us out of this dilemma.
12.27.2008 12:16pm
nutbump (mail):

(link)p. rich (mail) (www):
Let's begin with a look at AMA policies and the political activities of the American Association for Justice.


The practice is simple. Doctors have a tremendous power in U.S. they have a special privilige to set a federal quota on the number of doctors entering marketplace.
Every year they (themselves) set only certain number of qualified people that allowed to get a medical training.
Withoug medical training no doctor is allowed to practice medicine.
That creates a cituation that health care become outrageously expensive. As a result we have a numerous lawsuits against doctors, where angry patiens are trying to take revenge.
12.27.2008 12:29pm
David M. Nieporent (www):
The medical literature admits that medical malpractice kills about 100,000 hospitalized Americans per year.
No, it doesn't. That number is from the study about medical "errors," not malpractice, and it includes things obviously unrelated to "medical malpractice," such as patients falling in hospitals, and things questionably related to "medical malpractice," such as patients getting certain infections in hospitals.

Moreover, "killing" can include "shortening the patient's life by a few days"; it was derived from studies of Medicare patients, and the fact that an old, sick person gets an infection in a hospital and dies does not mean that one can extrapolate and assume that non elderly patients would do the same.
12.27.2008 2:04pm
FlimFlamSam:
The most effective way to combat the problem is not through the limitation of damages awards (with the possible exception of punitive damages), but to simply allow the enforcement of medical malpractice and other negligence (or even intentional conduct) waivers.

The market could put a price on the right to file a malpractice lawsuit, and consumers could decide whether to pay for that right in an up-front way. I suspect the vast majority of patients would sign such a waiver in exchange for lowered health care costs, but those who don't want to sign the waiver would still have the right to file malpractice suits.
12.27.2008 2:10pm
Ak:
"Every year Medical association establish a quota on how many doctors allow to be trained.
That is it, that is explanation why we do not have enough doctors in the United States."

Why do people insist on repeating this idiocy as if it's true? The AMA has no control over how many training slots there are. Guess who does? Medicare (CMS). And each training slot costs the federal government about $100000/yr. Not to mention that each extra doctor "costs" the government millions of dollars in ancillary services over their career. The incentive to train fewer doctors has nothing to do with the largely powerless AMA and everything to do with government cost saving.
12.27.2008 2:24pm
nutbump (mail):

Ak: ...The incentive to train fewer doctors has nothing to do with the largely powerless AMA and everything to do with government cost saving....


Are not we have private Health Care in United States, how in the world Federal Government Agency have an influence on the number of doctors allowed to practice in the country.
The answer is - that health care in U.S. is complete pervercy.
Government (Medicare) help to creates monopoly by limiting number of medical training positions (probably with help from medical lobbists) and then pay exorbitant prices to doctors and other health care service providers.
12.27.2008 3:01pm
Dave Hardy (mail) (www):
"IM and FP training to board certification takes 7 post-college years. As an attending, work weeks are typically 60 hours, with every 4 - 6th night on call. HIPA and billing regulations cut productivity by 1/2 to 2/3, and year after year Medicare saves money by cutting reimbursement. We are now well past the point where primary care medicine is no longer an attractive career. The solution is to bring in foreigners to fill all the medical doctor jobs Americans just won't do."

Instapundit posted to an article on this last week. As he noted, the government increases paperwork, reduces productivity, and cuts compensation ... and a shortage results. Who would have thunk it?

I'm told psychiatry faces a different problem. The older medications are cheaper, so the gov't requires you to prescribe them, even tho newer ones are more reliable and have fewer side effects. Result is that a certain percentage of patients go off the edge despite the medication, and have to be committed. A commitment costs far, far more than the new meds would. But the bean counters who pay for the meds aren't the bean counters who pay for commitments, and so they could care less. They don't get their job evaluations based on total cost to the public, they get them on how well they hold down those costs that *they* manage.
12.27.2008 4:52pm
Elliot123 (mail):
"The incentive to train fewer doctors has nothing to do with the largely powerless AMA and everything to do with government cost saving."

What is the role of the AMA in LCME accreditation?
12.27.2008 5:57pm
Dick King:
It is common knowledge that in the US more money is spent per capita on health care than in other countries. I would like to point out that some of this disparity is a statistical fluke induced by the medical malpractice system.

Let's say that a group of patients consume a billion dollars in their doctors' incomes and their use of other resources in a given period of time dealing with a certain group of patients. Let us further suppose that a quarter of this billion is repairing bad outrcomes that some juries would find to be malpractice and make awards. Note that these figures are for the sake of an example; I am making no claims about the relative sizes of bills for care due to illnesses and those due to bad outcomes that juries will award for; I'm using these numbers merely for examples.

In a country with a single payer system, the cash register would ring up a billion dollars of medical expenses, period, and the providers would collectively bill the government a billion dollars. In our system, the physicians would have to buy medical malpractice insurance, which would collectively have to pay the jury awards which would add up to about a half billion [let's face it; one purpose of pain and suffering is to cover the 33% contingency fees]. Furthermore, the insurance companies' lawyers need to get paid. Therefore, the physicians would need to bill the patients $1.5 billion, and this is what the total medical bill would be reported as -- even though the same real resources are being consumed in two countries.

So the fact that we don't have a single payer system causes us to report a higher collective medical bill than we would report in a single payer system. It is possible that the apparent medical bill will decrease if we go to single payer without any reduction in real resources [bright peoples' time, medical equipment, etc.] being consumed, because of this artifact.

-dk
12.27.2008 8:41pm
Dick King:
FlimFlamSam, I'm afraid that there would be one big problem with your eminently sensible plan.

Most people in this country are covered by third party insurance. This has three consequences:


1: Only the largest companies offer the employees a choice of coverage. In most cases this decision as to whether to cover the cost of not having a waiver would be made by the employer.

2: If the person does cover hirself or the employer offers a choice of coverages [with and without waiver] where the employee pays the cost of not having a waiver, the insurance company would pay a significant fraction of the cost of the waiver. Therefore, non-waiver doctors' visits would be underpriced.

3: In this day and age, where states are regulating and politicians are demagoging such matters as how long a new mother must be allowed to stay in the hospital after an uncomplicated vaginal birth, how long do you think it'll take before some bright politician [John Edwards, perhaps] rams through a law requiring health insurance to cover the cost of a non-waiver?


I like the idea, but it won't work because it's way too demagogable.

-dk
12.27.2008 8:57pm
Ak:
[i]"What is the role of the AMA in LCME accreditation?"[/i]

It would be the ACGME, not the LCME. LCME regulates opening of new medical schools. Broadly speaking, the process of new training slots occurs by an individual hospital or university petitioning to have more training slots/programs there. Then the ACGME's role is to verify that they meet the basic requirements to provide adequate training for the doctors they'll be releasing on the world.

I'm not sure if CMS automatically pays the federal training stipend for any slots approved by the ACGME or if there's some sort of cost control limitation. I suspect the latter, but in any event the demand to open new training positions follows a fairly predictable curve as you adjust the CMS stipend. The last thing Medicare is trying to do now is spend more money to train more doctors to spend more money. A lot of people apparently have no grasp of the fact that physician salaries are less than 20% of health care expenditures, but physicians drive 60% or more. Training more physicians to drive down salaries is a hilariously counterproductive way to save money.
12.27.2008 9:51pm
Dan Simon (mail) (www):
My next set of posts will be on the impact of damages caps on access to medical services.

Huh? A whole set of posts on a strawman? Excessive damages awards increase medical costs, and reduced availability is only one rare and extreme potential effect of such cost increases. More typically, higher costs mean that insurers end up cutting coverage of certain treatments, or raising rates such that some number of insurance customers end up downgrading or losing their coverage. Neither of these effects is likely to have any particular predictable effects on the availability of the medical services most affected by damages caps. But that hardly means that excessive damages awards don't have serious, widespread and deleterious effects on medical care.
12.28.2008 12:50am

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