Health Courts – A Reasonable Answer to the Malpractice Problem

I met a new patient last month that came to me because she needed to find a new internist.  When I asked why she responded, “Because I have to sue my last one.”

 

I’m sure it doesn’t surprise you to know that this is not the quickest way to endear yourself to a new doctor!  But as I always try to practice Stephen Covey’s advice to “seek first to understand and then be understood” I asked about the specifics of the situation.  As it turns out, this poor 59 year old woman was advised by her internist to have a mammogram performed.  Some of you may remember the controversy over whether annual mammograms were cost effective given how many “abnormal” mammograms turn out to be nothing but radiological artifact.  These “false positives” result in many healthcare dollars being spent in unnecessary evaluations and lots of emotional angst on the part of the women involved, but when you do catch an early breast cancer that saves a woman’s life, the joy is so profound that it’s hard to focus on economic practicality.

 

But as usual, I digress!  After this woman’s mammogram was found to be abnormal her internist referred her on to a surgeon for a biopsy, per the usual protocol.  The surgeon presumably evaluated the flim and performed an FNA (fine needle aspiration) in the office.  With every abnormal mammogram the following decision tree is faced in a surgeon’s mind….

1) Am I worried enough based on the radiologic appearance to just cut the whole thing out? (Which requires outpatient surgery in the hospital, anesthesia, recovery from surgery, and a permanent scar….)

2) Am I a little worried such that I will do a stereotactic biopsy with ultrasound guidance (Which requires assistance from a radiologist, an invasive biopsy with a large bore needle requiring more significant anesthesia, and more post-op pain…)

3) Based off the picture on the film I am not too worried and I will do the procedure with the least cost and least trauma to the patient (FNA) and follow the abnormality every 3-6 months with repeat exams and mammograms.

Perhaps this seems like an easy decision for some of you, but I assure you there are many shades of grey (pun intended!) and the decision is always tough.  As a woman who has had two breast masses and has had to personally undergo this decision tree knowing way too many scary things, I will share that once I chose excision, and once I chose FNA.  Never an easy choice.

 

In this woman’s case, FNA was advised and follow up was prescribed. Unfortunately, before her prescribed follow up, she noticed that the lesion seemed to have changed and was definitely larger.  She went back to the surgeon who now excised the lesion and found an advanced, aggressive cancer that had already invaded four lymph nodes.  This poor woman now had to undergo a complete mastectomy, chemotherapy, and radiation, and still has to live with the possibility of a recurrence.

 

Is the surgeon at fault in this case?  I honestly have no idea.  I never saw the original film, and I didn’t watch him perform the FNA.  Does this woman have the right to investigate whether she is the victim of malpractice?  Absolutely.  Was this more likely a case of playing the odds and losing?  Probably.  But what I was more confused by was the internist’s role in this story.  The woman admitted that she thought her old internist was great, always reminded her to get an annual mammogram, sent her right back to the surgeon when she voiced her concern, but “my lawyer told me I had to sue him”.

 

This, my friends, is the crux of the problem.  When a lawyer takes a case they drag EVERY physician involved in the patient’s care because then they can access more money for the client by cashing in on each doctor’s insurance policy.  It’s not about who’s right or wrong.  In too many cases it’s about how the lawyer can secure the biggest reward for themselves (and by trickle down, the patient).   In my last posting I aligned myself with the Democrats in terms of health care, but will now share that I am very disappointed that they will not embrace tort reform.  Historically physicians (and Republicans) have been asking for a cap of $250,000 to be placed on non-economic damages.  Traditionally, Democrats have opposed placing any sort of caps on damages, supposedly because they believe this will inhibit injured parties from receiving the just compensation they deserve, but the reality is that many of the elected candidates from the Democratic party made their money from malpractice litigation, and they are not going to bite off the hand that’s fed them.  So I swallow this.  I support the Democrats because their health plan is getting us headed in the right direction, but tort reform has not been addressed at all.

 

The American College of Physicians recognizes that this is a serious problem and drafted a “Health Courts Rescue Act of 2012” that provides a framework for legislation that authorizes a national pilot of no-fault health courts.  A section by section summary of the framework can be found at http://www.acpservices.org/leadday12/agenda/10.pdf

 

No-fault health courts would provide a new system to resolve medical malpractice claims by utilizing an administrative process and specialized judges, experienced in medicine and guided by independent experts, to determine cases of medical negligence without juries.  The idea that an average citizen, untrained in medical language let alone medical knowledge, can decide if there has been malpractice is ridiculous.  Even judges, who pass a certain intelligence criteria by graduating from law school and passing the bar, cannot be expected to be medical experts! We already have specialized judges in tax court, bankruptcy court, and family court.  Why don’t we have specialized judges for health courts?!  This not only better protects good doctors, but also protects patients.  In today’s system, two patients with the same story can have wildly different outcomes based on which jury and/or which judge their case is heard by.

 

Health courts would provide fair compensation for injuries caused by medical care, reduce costly and time-consuming litigation, reduce malpractice liability costs, provide guidance on standards of care, reduce the practice of defensive medicine, and improve patient safety.  The health court model is predicated on a “no fault” system, meaning compensation programs that do not rely on negligence determinations.  The central premise behind no-fault is that patients need not prove negligence to access compensation.  Instead, patients must only prove that they have suffered an injury that was caused by medical care, and that it meets the severity criteria.  The goal of the no-fault concept is to improve upon the injury resolution of liability.

 

So when I was in Washington last month, we actively sought a member of Congress in both chambers to introduce the ACP’s Health Courts Rescue Act of 2012.  We believe that authorizing a pilot on health courts provides an opportunity to break the gridlock in Congress concerning medical liability reform.  Before I close, since I did imply that some powerful Democrats refuse to cap noneconomic damages for self-serving reasons, I also feel compelled to inform my readers that President Obama is not included in this group.  In fact, President Obama included funding for pilot projects for health courts in his Fiscal Year 2012 budget.

 

So if this post has moved you, please write to your congressmen/women and ask them to introduce the ACP’s Health Courts Rescue Act of 2012.  Every trip I make to Washington confirms that the key people making the key decisions do not even know where to look all the time for revolutionary ideas.  I do think the aides read their email, and you never know when your plea may land on the right eyes or ears at the right time!

 

 

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About Kara Nance MD

Kara Nance, MD FACP currently works in private practice in Rolling Meadows, IL. Dr. Nance approaches the care of her patients with a very holistic attitude that targets the many factors that contribute to overall wellbeing. She is a mother of 4 young children, and often brings her personal life experiences into play when helping her patients solve problems relating to life balance. In addition to her clinical practice, Dr. Nance is passionate about electronic medical records and the establishment of electronic health exchanges. She consults with local physicians, hospitals, and medical groups about transitioning over to electronic medical records. Kara also participates in advocacy activities relating to primary care. As a Fellow in the American College of Physicians and a member of the ACP's Northern Illinois Council, Dr. Nance frequently travels to Washington to lobby for important issues in health care reform.
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One Response to Health Courts – A Reasonable Answer to the Malpractice Problem

  1. mj says:

    This is the first time I have read your blog. All I can say is- wonderfully profound.I can’t wait to read the next one. It takes a great mind to understand humanity. You are on a roll. Continue Please.

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