Takashi Murakami (artist)

Justices Make It Tougher to Sue Medical Device Makers

The Supreme Court upheld a lower federal court's decision today (story) that limited a patient's right to sue a medical device manufacturer under state law. And I think this is good. Medical devices undergo rigorous scrutiny by the FDA before being approved for use in patients. The FDA knows much more about these things than any juror ever will. If FDA approval did not protect a manufacturer from lawsuits (in state courts) then we would have fewer life-saving technologies since manufacturers would be reluctant to push new innovations; the new innovations would take more time and money for unnecessary testing (cover-your-ass design); the devices would cost more because of increased liability. All that sounds acceptable if you are the very rare and unfortunate person who is harmed by a device. It is absurd for the rest of us who enjoy its benefits.

Unfortunately doctors don't have a FDA that protects them from lawsuits. Without a doubt medical negligence is unacceptable and should be punished (medical negligence is not simply making a mistake; it is making a mistake that is unacceptable or unreasonable when measured up to the standard of care practiced in that doctor's community). Bonafide cases of medical negligence are relatively rare. The bulk of medical malpractice lawsuits (whether or not they go to trial) fall into two types.

1. The first is when there is an unfavorable outcome according to the patient, although the doctor had followed community standards and had not nade a mistake at all. These are lawsuits driven by the media and malpractice attornies.
2. The second is when a doctor had made a decision that is deemed a mistake in retrospect but had been in accordance with community standards at the time. This is a medical error but not negligence.

Studies have shown that the doctors who tend to get sued are not the doctors who make poor decisions or make a technical error in the OR, but are the doctors with poor interpersonal skills, who refuse to accept responsibility for a bad outcome, or who don't apologize for their mistakes. It is more about how patients are treated than an objective medical outcome in other words. Although such a patient may be justified in feeling angry at their doctor, it is an abuse of our legal system to let patient/jury emotions play a role (a huge role) in determing whether a doctor is liable for a certain outcome.

The problem with our medical liability system in this country - [sigh] this is a huge topic - is that

• Juries decide cases that involve technical information beyond their understanding and experience - doctors, drug companies and device manucturers are not tried by a jury of their peers (I am not a mechanic and have absolutely no ability to determine if a mechanic has made a good or bad decision in fixing my car. It is more rational to defer to the opinion of a jury of mechanics.)
• The court room only represents cases of failure (harm), rather than cases of success, which are far and away more common, and so
• Rulings in favor of a patient have huge negative consequences for the rest of society at large, such as increased medical costs and physician shortages due to unreasonably expensive liability (these costs are ultimately passed down to the consumer, so although we may cheer the patient who was awarded $25 million, we are all going to pay for it)

The key to reforming the medico-legal landscape lies in creating a system that acurately and inexpensively identifies true medical negligence from frivolousness, and then awards generously in those cases. I don't how to do this, but eliminating incentives for malpractice attorneys to cook up lawsuits for prize money would probably be a key piece. Another piece would be rationalizing the system to ensure that frivolous complaints do not consume too many resources.

One idea is to get rid of juries in malpractice lawsuits. Such lawsuits are about technical errors, and so I don't see any role for a jury composed of laypeople. Even with expert witnesses it is unrealistic to expect a layperson to understand the complexities of medical decision making that requires years to learn and master. I know there are people who would say that doctors would form a cabal and protect themselves by never prosecuting each other. This could be true, but I think it is unlikely since the overwhelming majority of doctors I know are deeply upset about and ashamed of bad doctors; they give their profession a bad image, afterall. Furthermore, negligent doctors are dangerous and other doctors will be left with caring for patients harmed by their irresponsible care. However, it is safe to predict that a jury of doctors would be immune to the emotional arguments involved with frivolous lawsuits. And that is the point.

Tort reform is another proposed solution to the medical liablity problem. This would involve maintaining the current jury system but placing a limit on compensation for non-economic damages.

Although both proposals would limit the amount of money awarded in frivolous malpractice lawsuits, I am uncertain if either proposal would reduce the number of frivolous lawsuits. Most malpractice complaints are resolved out of court, but still cost the medical industry beaucoup bucks in legal defense fees. Reducing the huge awards, although an admirable goal, will probably not make a huge difference in overall liability costs.

Medical Schools' Role in Primary Care Shortage

We hear frequently these days about the looming physician shortage, which will be especially acute in rural and poor urban areas, and in primary care specialties (internal medicine, family medicine, obstetrics & gynecology). Yet unfortunately very little is being done to address the shortage, aside from research and conferences and publications telling us what we have known for some years. It is inevitable that at some point in the near future the collapse of primary care in this country will yield an angry reaction from the media and subsequent public outcry. Don't say us doctors didn't tell you.

The problem of why we are going to have a doctor shortage is multi-factorial, but starts with medical education. In short, medical schools are too restrictive (and expensive, but this is another topic). This shuts out many people who despite not being top-of-the-class would otherwise make fine doctors. In fact, it is well known in medicine that perfect grades and test scores are not accurate predictors of whether that person will be a good doctor. As much as our medical schools now try to fill their classes with students with diverse backgrounds, the fact remains that medical students are still a pretty uniclonal group. They all have extraordinary academic records and curriculae vita and tend to have backrounds in the so-called hard sciences. The fact that medical schools still select out these types of students demonstrates to me a startling inconsistency between what the medical profession knows (medicine is not science) and what the medical profession thinks is the best way to replenish its ranks (scientists make good doctors).

To illustrate this point consider psychiatry, the medical specialty with perhaps the largest supply-demand disproportion. This is not because there are simply too few people who want to be psychiatrists; there are many young college students who would jump at the chance to go to med school to become a psychiatrist if they had an opportunity. I am sure that we could easily eradicate the psychiatrist shortage in a few short years by gently easing the academic standard to enter medical school for those who would committ to going into that profession. I know many people would oppose this for fear that it would jeopordize the integrity of the profession, and they would be right if we lowered standards of personal integrity in order to graduate more psychiatrists. Being a person of high integrity, however, has nothing to do with getting straight As.

Medical school admits mostly highly ambitious, competitive, science grads and then lets them decide what kind of doctors they want to be at the end of their medical school career. So is it really surprising that most will choose ambitious, competitive, more technical fields (that is to say, well-remunerated subspecialties rather than poorly-remunerated primary care)?

In order to correct the problem of primary care doctor shortage medical schools need to either (a) change the composition of their student body so that the backgrounds and career aspirations of entering students correspond with a primary care speciality, or (b) have a quota system in which students commit to primary care prior to entering medical school. Filling such a quota would not be hard - like I said there are plenty people would be happy to family doctors - but medical schools would need to refocus their academic criteria for admission.

Preventative Medicine Does Not Save Money

Here's a new study out of the Netherlands (and a Washington Post article about it) that concludes that preventing obesity and smoking may not save money, and may in fact cost more. Although the health care costs for a given time period (say 10 years) was higher for obese patients and smokers compared to healthy non-smokers in the study, the authors state that the total lifetime health care costs were actually higher for normal weight non-smokers because of their longer life spans (obese people and smokers die younger - 5 and 7 years sooner, respectively).

A friend of mine in medical school and I used to question the economic argument in support preventive medicine, that is, it saves money in the long run to prevent diseases than to treat them. Preventative medicine, however, usually does not prevent disease so much as delay it. Although we may live longer (and healthier) with preventative medicine, we will still ultimately succumb to an illness in our old age - in spite of preventative medicine to prevent it. The fact that I die of a heart attack at the age of 85 instead of 75 may be great for me and my grandkids, but that means 10 more years of health care costs incurred by society, and at an age when I am no longer productive and entirely siphoning off resources from the system.

To complicate this, consider that health care costs per patient generally grow exponentially as we age, so that my medical needs in my 80s will be considerable more than in my 60s. Also, the epidemiology of disease changes as we get older. People in this country die from cancer and heart disease a lot more than people in Africa because the risk of cancer and heart attacks increases considerably as you age (Africans, sadly, tend to die before this point). Cancer, compared to tuberculosis or malaria, is also a phenomenally expensive disease to treat.

The most widely recognized benefit of preventative medicine is an increase in quality of life years, not economic savings. And this is far more important than dollars and cents anyway. Nevertheless it is important to acknowledge that preventative medicine will likely cost us more not less as we continue the lively public discourse on health care reform.

Does Preventive Care Save Money? Health Economics and the Presidential Candidates
NEJM

Nobuyoshi Araki (photographer)