Med Mal News

Study Finds Widespread Practice of Defensive Medicine in Massachusetts

The Massachusetts Medical Society, the professional advocacy group that publishes the New England Journal of Medicine, has surveyed 838 doctors about their practice of “defensive medicine.” The survey's respondents reported that they often ordered or performed unnecessary tests and procedures in order to protect themselves against future liability.

The survey asked doctors in eight specialties how often in any given month they made specialty referrals or ordered x-rays or hospital admissions, among other things, to avoid being sued. The results showed that between 18% and 28% of all such tests and procedures were ordered primarily for liability avoidance, and that 83% of the doctors surveyed engaged in this practice. Extrapolating from the statistics, the group estimates the State of Massachusetts pays an extra $1.4 million per year in Medicare fees to cover the costs of these unnecessary procedures. The group says this overpayment estimate does not include the costs of the defensive medicine practices of physicians in medical specialties not surveyed.

One of the lead researchers in the study was Manish K. Sethi, M.D., of the Department of Orthopedic Surgery of Massachusetts General Hospital and a member of the Massachusetts Medical Society's Board of Trustees and its Committee on Professional Liability. Dr. Sethi discussed the survey's results in a Medical Society release: “This survey clearly shows that the fear of medical liability is a serious burden on health care. The fear of being sued is driving physicians to defensive medicine and dramatically increasing health care costs. This poses a critical issue, as soaring costs are the biggest threat to the success of Massachusetts health reform efforts.”

Alan Woodward, M.D., vice chair of the Medical Society's Committee on Professional Liability and one of its past presidents, says the study's results point to a need to for a new model for settling patient medical disputes with health care providers, with lawsuits being the last alternative, not the first. “The best approach,” he said in a statement, “is for fundamental transformation to a new model, such as the one proposed by The Joint Commission, which urges investing in a baseline culture of safety at every healthcare enterprise; full disclosure to patients about adverse events, and for avoidable injuries, sincere apology with an offer for timely and fair compensation; and mediation and arbitration to resolve disputes.”

Health Care Cases Account For Bulk of False Claim Act Recoveries

In the fiscal year ending Sept. 30, 2008, the federal government obtained $1.34 billion in judgments and settlements under the False Claims Act. Most of these recovered funds ' $1.12 billion ' came from health-care suits. The Department of Health and Human Services was the biggest winner, recovering monies fraudulently obtained from its Medicare and Medicaid programs.

Many False Claim Act cases are brought by whistleblowing private citizens known as “relators,” who get to keep between 15% and 25% of the proceeds of their claims if the federal government intervenes, and up to 30% if the government does not.

Primary Care Physicians Dissatisfied and Wanting Out

A survey conducted by The Physicians' Foundation shows that almost half of the primary care physicians questioned are unhappy with their practices. In fact, 49% of the survey's 150,000 participants plan to reduce the number of patients they see over the next three years, or discontinue seeing any at all. Interestingly, the primary reasons given by the survey's respondents for their dissatisfaction with the field of primary care medicine did not focus on the high costs of liability insurance. Instead, primary care physicians were upset with the amount of time they must spend on non-clinical paperwork and government red tape, as well as on trying to get reimbursement for their services. “Going into this project we generally knew about the shortage of physicians; what we didn't know is how much worse it could get over the next few years,” said The Physicians' Foundation's president, Lou Goodman, PhD, in a statement. “The bottom line is that the person you've known as your family doctor could be getting ready to disappear ' and there might not be a replacement.”

Electronic Records May Reduce Medical Malpractice Payouts

A new study published in the Nov. 24, 2008 issue of the Archives of Internal Medicine suggests that physicians who move to electronic record-keeping methods are less likely to have to pay malpractice settlements. The study's authors caution that more research on the topic is necessary before a definitive conclusion can be reached on the connection between electronic records and medical malpractice claims, but they say that of the 1385 Massachusetts physicians surveyed, only 5.7% of those who enthusiastically adopted electronic health records technology paid out on medical malpractice claims between June 1, 2005 to Nov. 30, 2005. During the same period, 12.1% of physicians who were low users of electronic records technology paid medical malpractice settlements.

The authors hypothesize that the decreases in med-mal payments associated with electronic record use are likely due in part to improved access to patient histories and
better tracking of tests, leading to better follow-up care. The record of care provided may also be more complete, making defense of medical malpractice claims easier.

Third State Says Doctors Can Help Terminally Ill
Patients Die

With a decision rendered Dec. 8, 2008 by a Montana court, the state became the third in the nation to allow terminally ill patients to take their own lives, with medical assistance. The ruling allows doctors to give mentally competent dying patients lethal medications that they can self-administer. Doctors who do so will be immune from criminal prosecution.

The plaintiff in the case, a man suffering from leukemia, reportedly never got the news. According to Montana's News Station, the 75-year-old plaintiff was sleeping when his attorney called to tell him they had prevailed in his right-to-die case. Plaintiff Robert Baxter never woke up, dying naturally that same day. Washington and Oregon also allow assisted suicide.

Inadequate Medical Care Cited in Suit to Free
California Prisoners

In the second week of December, a panel of the U.S. Court of Appeals for the Ninth Circuit heard arguments in a suit seeking the release of more than 50,000 inmates from California's overcrowded prison system, in part because the state cannot provide them with proper medical care. California's prisons currently house about twice as many inmates as they were designed to hold. The prison system's health care operations have been under the control of a federal receiver since 2006 because of inadequate provision of medical care to its residents. The panel is expected to render a decision in early 2009.

Study Finds Widespread Practice of Defensive Medicine in Massachusetts

The Massachusetts Medical Society, the professional advocacy group that publishes the New England Journal of Medicine, has surveyed 838 doctors about their practice of “defensive medicine.” The survey's respondents reported that they often ordered or performed unnecessary tests and procedures in order to protect themselves against future liability.

The survey asked doctors in eight specialties how often in any given month they made specialty referrals or ordered x-rays or hospital admissions, among other things, to avoid being sued. The results showed that between 18% and 28% of all such tests and procedures were ordered primarily for liability avoidance, and that 83% of the doctors surveyed engaged in this practice. Extrapolating from the statistics, the group estimates the State of Massachusetts pays an extra $1.4 million per year in Medicare fees to cover the costs of these unnecessary procedures. The group says this overpayment estimate does not include the costs of the defensive medicine practices of physicians in medical specialties not surveyed.

One of the lead researchers in the study was Manish K. Sethi, M.D., of the Department of Orthopedic Surgery of Massachusetts General Hospital and a member of the Massachusetts Medical Society's Board of Trustees and its Committee on Professional Liability. Dr. Sethi discussed the survey's results in a Medical Society release: “This survey clearly shows that the fear of medical liability is a serious burden on health care. The fear of being sued is driving physicians to defensive medicine and dramatically increasing health care costs. This poses a critical issue, as soaring costs are the biggest threat to the success of Massachusetts health reform efforts.”

Alan Woodward, M.D., vice chair of the Medical Society's Committee on Professional Liability and one of its past presidents, says the study's results point to a need to for a new model for settling patient medical disputes with health care providers, with lawsuits being the last alternative, not the first. “The best approach,” he said in a statement, “is for fundamental transformation to a new model, such as the one proposed by The Joint Commission, which urges investing in a baseline culture of safety at every healthcare enterprise; full disclosure to patients about adverse events, and for avoidable injuries, sincere apology with an offer for timely and fair compensation; and mediation and arbitration to resolve disputes.”

Health Care Cases Account For Bulk of False Claim Act Recoveries

In the fiscal year ending Sept. 30, 2008, the federal government obtained $1.34 billion in judgments and settlements under the False Claims Act. Most of these recovered funds ' $1.12 billion ' came from health-care suits. The Department of Health and Human Services was the biggest winner, recovering monies fraudulently obtained from its Medicare and Medicaid programs.

Many False Claim Act cases are brought by whistleblowing private citizens known as “relators,” who get to keep between 15% and 25% of the proceeds of their claims if the federal government intervenes, and up to 30% if the government does not.

Primary Care Physicians Dissatisfied and Wanting Out

A survey conducted by The Physicians' Foundation shows that almost half of the primary care physicians questioned are unhappy with their practices. In fact, 49% of the survey's 150,000 participants plan to reduce the number of patients they see over the next three years, or discontinue seeing any at all. Interestingly, the primary reasons given by the survey's respondents for their dissatisfaction with the field of primary care medicine did not focus on the high costs of liability insurance. Instead, primary care physicians were upset with the amount of time they must spend on non-clinical paperwork and government red tape, as well as on trying to get reimbursement for their services. “Going into this project we generally knew about the shortage of physicians; what we didn't know is how much worse it could get over the next few years,” said The Physicians' Foundation's president, Lou Goodman, PhD, in a statement. “The bottom line is that the person you've known as your family doctor could be getting ready to disappear ' and there might not be a replacement.”

Electronic Records May Reduce Medical Malpractice Payouts

A new study published in the Nov. 24, 2008 issue of the Archives of Internal Medicine suggests that physicians who move to electronic record-keeping methods are less likely to have to pay malpractice settlements. The study's authors caution that more research on the topic is necessary before a definitive conclusion can be reached on the connection between electronic records and medical malpractice claims, but they say that of the 1385 Massachusetts physicians surveyed, only 5.7% of those who enthusiastically adopted electronic health records technology paid out on medical malpractice claims between June 1, 2005 to Nov. 30, 2005. During the same period, 12.1% of physicians who were low users of electronic records technology paid medical malpractice settlements.

The authors hypothesize that the decreases in med-mal payments associated with electronic record use are likely due in part to improved access to patient histories and
better tracking of tests, leading to better follow-up care. The record of care provided may also be more complete, making defense of medical malpractice claims easier.

Third State Says Doctors Can Help Terminally Ill
Patients Die

With a decision rendered Dec. 8, 2008 by a Montana court, the state became the third in the nation to allow terminally ill patients to take their own lives, with medical assistance. The ruling allows doctors to give mentally competent dying patients lethal medications that they can self-administer. Doctors who do so will be immune from criminal prosecution.

The plaintiff in the case, a man suffering from leukemia, reportedly never got the news. According to Montana's News Station, the 75-year-old plaintiff was sleeping when his attorney called to tell him they had prevailed in his right-to-die case. Plaintiff Robert Baxter never woke up, dying naturally that same day. Washington and Oregon also allow assisted suicide.

Inadequate Medical Care Cited in Suit to Free
California Prisoners

In the second week of December, a panel of the U.S. Court of Appeals for the Ninth Circuit heard arguments in a suit seeking the release of more than 50,000 inmates from California's overcrowded prison system, in part because the state cannot provide them with proper medical care. California's prisons currently house about twice as many inmates as they were designed to hold. The prison system's health care operations have been under the control of a federal receiver since 2006 because of inadequate provision of medical care to its residents. The panel is expected to render a decision in early 2009.