American People's Online Health Summit

Congressman Tom Price, M.D.

Hundreds of millions of health care dollars are needlessly being wasted every year, not to fend off illness, but rather to fend off lawsuits.  As a physician, I can attest that more than the costly liability insurance doctors and hospitals must carry today, the real strain on our health care system comes from the practice of defensive medicine.  As high as 25% of the treatments, procedures, and tests carried out by medical professionals every day are intended solely as a defense against lawsuits. These exercises do not harm the patient, but they subject them and the system to significant unneeded costs simply so that enterprising trial lawyers will be dissuaded from unfounded accusations of negligence or mistreatment.  Aided by the astronomical dollar amounts pursued by the trial bar, a lottery mentality has emerged.

Rather than based on expert medical opinions, judgments today are rooted in claims that do not square with sound medicine.  To resolve this growing impediment to quality care and to lower health care costs, I have introduced an innovative solution for civil justice. At the root of the Health Care Overuse Reform Today Act, or HealthCOURT Act (H.R. 3372), is the creation of new Health Courts that specialize in malpractice claims and take into account the opinions and best practices of medical specialty societies - those doctors actually in the trenches taking care of patients every day.  When judgments are based on sound medicine, we will see a remarkable drop in the number of baseless lawsuits.  This will allow doctors and patients to focus on quality care and ensure health care dollars are being spent to save and improve lives.

Congressman Price received a Doctor of Medicine degree from the University of Michigan and completed his Orthopaedic Surgery residency at Emory University. First elected to Congress, representing the Sixth District of Georgia, in November 2004, Price was re-elected with broad support in 2006 and 2008. Prior to going to Washington, Price served four terms in the Georgia State Senate. In Congress, he was elected by his colleagues to serve as Chairman of the House Republican Study Committee (RSC) during the 111th Congress. The RSC is committed to providing principled, common sense solutions to all of our nation’s challenges.

Jeffrey Segal, MD, JD, FACS

Fear of litigation is ubiquitous. The experience is so odious we physicians will do almost anything to avoid repeating it. We will order tests, perform procedures, and recommend referrals, all to prevent sitting in front of a jury. As one ER physician put it, “I will scan patients until they glow if it will keep me out of court.” And there are 800,000 of us who are fully capable of ordering just as many tests and referrals as the fictional TV character, Dr. Gregory House. We euphemistically label it defensive medicine.

Defensive medicine eludes easy definition, but it is pervasive. Some defensive tests provide value to the patient. Some paradoxically put the patient in harm’s way. Most of the time, no value accrues, just cost and inconvenience.

It’s a staggering sum. Defensive medicine is pervasive even in states that have enacted substantive tort reform. Traditional tort reforms have done a good job keeping the “severity” of litigation to a reasonable number. In California, for example, there is a cap on pain and suffering at $250,000. This translates into lower professional liability premiums for doctors. So far so good. But, paradoxically, in California, the frequency of litigation is higher than a number of other states. The reforms do not address frequency. Physicians will practice defensively whether $1 or $10 million is on the line.

Federally, we seem to be at an impasse regarding reforms to decrease wasted sums currently spent on defensive medicine. There is a way forward. This idea has been vetted with those on the right and the left.

Clinicians should be shielded from liability if they document their use of evidence based medicine (“EBM”) and/or clinical best practices. Such documentation would be exculpatory and presumptive evidence that the standard of care was followed. This would translate into a “safe harbor” immunity.

No less important is preserving the right of physicians to exercise their clinical judgment to make personalized decisions based on the circumstances of the patient and his/her condition. The physicians may choose to deviate from accepted algorithms, if in that case, it makes better clinical sense. In that scenario, the doctor would merely document he was aware of algorithms recommended by evidence based medicine but consciously chose a different path for specific reasons. This documentation would provide qualified safe harbor immunity. This twist would serve two goals: (a) to prevent EBM from being abused as inculpatory evidence (that is, failure to embrace such algorithms being misconstrued as a violation of the standard of care); and (b) respond to the concern that blind adherence to EBM algorithms is “cookbook medicine” - applicable to all patients.

The goal is to take advantage of EBM where it benefits patients; but provide clinicians some latitude to use their judgment to deviate from these algorithms when it makes sense. Documentation of the use of EBM or conscious deviation from EBM could both be exculpatory.

This simple “reform” is not particularly radical. It would arguably keep patients safe. Physicians would be incentivized to provide the best care based on clear guidelines or their judgment. And a great deal of money could be diverted to more productive purposes.

Dr. Segal is a board-certified neurosurgeon who was educated at the University of Texas and the Baylor College of Medicine, earning Phi Beta Kappa and AOA Medical Honor Society recognition. He completed his neurosurgical residency at Baylor College of Medicine and continued as a Spinal Surgery Fellow at University of South Florida School of Medicine. Dr. Segal graduated from Concord Law School with highest honors. He is a Fellow of the American College of Surgeons, and a member of the American Association of Neurological Surgeons and the North American Spine Society. In the late 1990's, Dr. Segal served as secretary for the Indiana State Neurosurgical Society. Dr. Segal was a founder and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, N.C. focused on discovering and developing first-of-class pharmaceuticals for a variety of neuro-psychiatric disorders.

James Morrow, Jr., M.D.

So much has been said about health care reform in the past year, and yet the talk continues. I am one of the many who believe that we will not have true, meaningful health care reform (that would include bringing the cost of healthcare under some sort of control) until we have tort reform.

The extra cost associated with tests and procedures ordered out of fear is growing very year and represents a large part of the overall healthcare dollar.

In Georgia, since the current law went into effect in 2005, we have seen the average number of malpractice claims drop from 1128 in 2004 to 683 in 2008, a decrease of 39 percent.

The result of this is that doctors have at least a chance to consider whether to perform a particular test because it is necessary for the welfare of the patient and not because it might prevent a suit.

James R. Morrow, Jr., M.D., is the Medical Director for Allscripts Healthcare Solutions.  Prior to moving to Allscripts, he practiced in the Cumming, Georgia office of North Fulton Family Medicine, where he led the implementation of an electronic health record.

A graduate of Clemson University and the University of South Carolina School of Medicine, he is a past winner of the Healthcare Information Management Systems Society's (HIMSS) Davies Award for excellence in EMR implementation, and was recognized as the 2006 Physician IT Leader of the Year by HIMSS. He also has served two terms as a commissioner on the Certification Commission for Healthcare Information Technology (CCHIT). Dr. Morrow serves on the Board of Directors of the Physicians' Institute for Excellence in Medicine and the Georgia Health Information Exchange (GHIE) and is a member of the Advisory Board for Health for the Technology Association of Georgia (TAG-Health).

Dr. Morrow has presented to national audiences across the U.S. and continues his activity in the national healthcare arena.

AMERICAN PEOPLE'S ONLINE HEALTH SUMMIT

Center for Health Transformation

 

An ongoing, online Summit with the American People to discuss solutions to transform our country’s healthcare system.

 

Featured topic today Monday February 22, 2010

 

Health Justice Transformation

Patient Safety; Protecting Good Doctors;

Access to Care

Civil justice reform is simple. It neither increases our taxes nor expands the federal bureaucracy.

What should be considered later this week when Congressional leaders and the White House sit down to discuss health reform?

As congressional leaders prepare to meet with the White House on health care reform later this week, most Americans believe that civil justice reform should be addressed.  And physicians and other healthcare professional overwhelming support civil justice reform.  These type of reforms offers the biggest hope of providing significant savings – $650 billion annually in defensive medicine costs alone. 

Civil justice reform is simple. It neither increases our taxes nor expands the federal bureaucracy.

So as the debate continues in Washington over what to do about health reform, civil justice reform continues to be pushed to the back burner by the president and democratic leaders in Congress. While the president has repeatedly called for a closer examination of successful state-based civil justice reform solutions, we already know that civil justice reform works. States like Texas, California and Georgia have demonstrated that civil justice reform can also stem skyrocketing medical malpractice insurance premiums and how those costs are being passed along to the consumer. 

California passed civil justice reforms more than 30 years ago, and malpractice premiums in several specialties are now as much as 50 percent lower than those in states such as New York, Pennsylvania and Florida. Texas adopted comprehensive legal reform in 2003, and more than 14,000 doctors have returned to the state or decided to move to Texas as a result of civil justice reforms. Communities in Texas that once did not have primary or specialty care doctors now have a full complement of physicians. Georgia passed civil justice reforms in 2005 and medical litigation insurance premiums have been steadily decreasing while the number of communities with access to a physician have increased. 

It will take bold leaders willing to stand up to personal injury lawyers.  If this Congress and this president are serious about health reform, civil justice should be addressed. There is a potential pot of $650 billion annually which could go to decreasing premiums for individuals and small employers. It could be used to reduce the rolls of the uninsured. It could go to improving patient safety and reducing medical errors.

There are many suggested reforms … including creating a “safe harbor” for physicians who employ best medical practices, caps on non-economic damages or so-called “pain and suffering” claims, and creating health courts which specialize in medical injury cases.

Georgia Senator Judson Hill

Why do we need lawsuit reform?

Runaway court awards for damages drive up the cost of doing business as well as the expense of health care. These high costs are passed on to consumers and contribute to poorer access to health care for many Americans as health care providers choose to leave their profession. Frivolous lawsuits aren’t just driving away the poor performers but some of our best and brightest also quit because doctors can’t stay in business with the unlimited financial exposure. Numerous states have passed laws to address lawsuit reform, otherwise known as tort reform. In 2005 Georgia placed award limits on a portion of lawsuit damages called pain and suffering and enacted other lawsuit reform measures without limiting true losses. This stabilization of litigation risk and exposure has attracted numerous businesses and physicians to move to Georgia. More importantly, at a time when we need more medical personnel to serve an aging population more physicians are now choosing to move Georgia or remain here. Yes, the really bad losses are being compensated for; however, the general belief that a lawsuit could be your ticket to “win the lottery” has ended. If America is going to truly reform healthcare so health care can be more affordable for everyone, then Washington too should make federal tort reform a key element of its health care reform measures.

Senator Judson Hill has led the nation with common sense state-based free market health care reform measures as a leading conservative voice in the Georgia Senate.

Poll: One of Four Healthcare Dollars Spent on Unnecessary Medical Care

WASHINGTON - One in four dollars spent on health care in America now pays for unnecessary tests and treatments that physicians order to keep from being sued, according to a new poll of the nation’s doctors released today by Jackson Healthcare and the Center for Health Transformation.

The poll, conducted by the Gallup organization for Jackson Healthcare, showed that of physicians surveyed nationwide, 73 percent said they practiced some form of “defensive medicine” in the past 12 months to protect themselves from frivolous lawsuits.

That means patients are paying more so doctors don’t get sued.

“Healthcare would be cheaper for every American if we could slash the cost of defensive medicine,” said Newt Gingrich, founder of the Center for Health Transformation. “Think of how often each of us gets sent for extra lab work or tests that seem so unnecessary.

“Meaningful health reform must address these unnecessary costs,” Gingrich said.

Gallup conducted the six-week, nationwide survey across all specialties of physicians. Those doctors reported that 26 percent of overall healthcare costs can be attributed to the practice of defensive medicine.

According to just-released data by the Centers for Medicare and Medicaid Services, healthcare in America now costs $2.5 trillion annually.

“Doctors order unnecessary medical care because they are in fear that one mistake could wipe out everything they’ve ever worked for,” said Richard Jackson, chairman and CEO of Jackson Healthcare, an Atlanta-based healthcare management company.

CHT has suggested addressing civil justice reform, or discouraging frivolous lawsuits, through several means including health courts that only consider medical malpractice cases.

Based on Gallup’s survey, Jackson Healthcare officials estimate that $650 billion of the $2.5 trillion spent on healthcare annually is spent on unnecessary tests and treatments.

“That kind of money could certainly help pay for the healthcare of many uninsured Americans,” Jackson added. “If we eliminate defensive medicine, we can make healthcare more affordable for everyone.”

For more information contact Alissa Momberg at 202-375-5020 at the Center for Health Transformation or Bob Schlotman at 770-643-5697 at Jackson Healthcare.

Rick Jackson

Radical Solution needed to Eliminate Defensive Medicine Costs

 

I am disturbed by our recent findings that a quarter of every dollar I spend on my medical care is considered medically unnecessary by my physicians.

 

Why? Physicians can’t trust they won’t get sued for tests and treatments they have not done.  So they order more than is needed purely for documentation, so that they don’t lose everything they have.

 

This is unfair to my physician and me.

 

Did you know that physicians are personally financially liable for their medical decisions? Contrary to what most Americans believe, physicians are NOT legally protected through their business, employer or insurance.   Their career, reputation and personal net worth are at risk each day.

 

The reality is that costs go up while quality and access go down when physicians are under the constant fear of lawsuits.  Traditional Tort Reform will not eliminate defensive medicine. In fact, our research shows that in “Tort Reform” states, physicians practice the same amount of defensive medicine. We need something more radical. Our workers’ compensation system appears to be a great model to solve this problem. 

 

The solution to saving $650 billion per year and ELIMINATING defensive medicine requires three steps:

 

1. Protect physicians from being personally financially liable for unintended errors. (Physicians in many countries like Canada, England, and Sweden do not hold Physicians financially liable for malpractice.)

 

2. Medical Review Boards would review and determine if negligent treatment  has been provided to the patient.  

 

3. Non-medical compensation boards would award consistent fair compensation  to patients.

 

Imagine what our care would be like if our physicians felt free to do what was in our best interest, as patients. Our research shows that 90% of physicians think patients have the “right” to compensation if negligently treated.   I believe this system would promote more transparency around mistakes physicians make and, not only increase the number of patients getting compensation, but free physicians to learn from each other and foster an environment of best practices.

 

Imagine how $6.5 trillion in savings over the next ten years could be used to cover the uninsured.  Imagine how much faster patients could be compensated with a workers’ comp style system in place. We don’t have to wait 10 years to “bend the cost curve.”  We can save $650 billion a year NOW!

 

I’m interested in what you think.  Can a Workers’ Compensation style model work?

 

Richard Jackson is Chairman and CEO of Atlanta-based Jackson Healthcare. Jackson’s staffing and technology companies serve more than two million patients in nearly one thousand hospitals each year.

Hal C. Scherz, M.D.

When a person comes to a doctor's office, they are viewed not just as patients, but as potential plaintiffs. This is unfortunate and potentially damaging to the fragile doctor-patient relationship that needs to be established, beginning with that initial encounter. When it becomes necessary for the doctor to contemplate the possibility that any outcome involving the patient which is short of perfection, may trigger a malpractice suit, it starts this relationship off on the "wrong foot."
 
It is impossible to make doctors impervious to those who view the medical legal system as a lottery. However, when attempts are made to add protection, it comes at a huge cost. It is estimated that between $200-400 billion per year is wasted servicing this economy within the healthcare sector. Doctors often order an extra test just to be sure that they don't "overlook something." Malpractice insurance premiums are so outrageously high that some states don't have enough obstetricians to deliver babies. A pair of heart surgeons in Wyoming are forced to share a malpractice policy because they can't afford the $250,000 annual premium. Consequently, they can only practice half time, not because they want to, but because they have no other choice. We all pay for the costs that this abusive system shifts over to physicians.
 
Patients who are truly injured or damaged need to be able to collect reasonable compensation. However, the ambulance chasers need to be stopped and punished if necessary. Measures such as no fault insurance and moving these cases out of the civil courts are but a couple of the many ways that this problem can be made better. Doctors should not have to view patients as possible adversaries. The loser in this always turns out to be the patients.

Dr. Hal C. Scherz is a renowned Pediatric Urologist practicing in Atlanta Georgia. He is also serving as the President of Docs 4 Patient Care (D4PC).  His training has taken him from New York to Texas to California at some of the most well regarded institutions in American Medicine. He is a full time practicing urologist at Children’s Healthcare of Atlanta, and is an Asst. Professor at Emory University. He has one of the few fellowship training programs in Pediatric Urology in the US and serves as a principal investigator on numerous studies in his field of expertise and a reviewer for several peer reviewed journals in Urology.