If I told you that, every week, between 4,200 and 8,400 people were poisoned by contaminated food, would you say restaurants needed special protection from negligence lawsuits because fear of such lawsuits would force them to clean too much? “Defensive cleaning,” so to speak.


If I told you that, every week, between 4,200 and 8,400 people were killed in fires caused by bad electrical wiring, would you say electricians needed special protection from negligence lawsuits because fear of such lawsuits would force them to insulate too much? Call it, “defensive wiring.”


Of course you wouldn’t. Thankfully, I made those numbers up: combined, foodborne illnesses and home electrical fires kill about 3,500 people per year. That’s one-hundredth as many people as the 210,000 and 440,000 patients killed each year by medical malpractice. But the “defensive medicine” myth — the claim that, when doctors are worried about getting sued, they start running unnecessary tests and doing unnecessary procedures, thereby increasing the health care costs for everyone — just won’t go away as a justification for “tort reform.”


The whole notion of “defensive medicine” has always been silly: doctors are held responsible for malpractice when they don’t do something required by the standard in the field that would have helped the patient. Doctors can’t be held accountable for not doing something that wouldn’t have made a difference. The notion has also always been misleading, too: as the Congressional Budget Office said a decade ago, “some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians…,” a point repeatedly echoed by others even in the medical field like Atul Gawande.


Yet, a quick search of case law reveals the myth’s pervasive, ongoing effect on the legal system. There are the obnoxious defense “experts” deliberately making speeches in front of juries (Pin v. Kramer, 41 A. 3d 657, Conn. 2012), legislatures enacting special laws to hinder malpractice victims (Jackson v. HCA Health Services, 383 SW 3d 497, Tenn. 2012), and federal judges who should know better than accepting the myth at face value when deciding federal tort law (Gipson v. US, 631 F. 3d 448, 7th Cir. 2011). Continue Reading Studies Again Show Dangerous Doctors Bigger Problem Than Defensive Medicine

I’ve written extensively about medical malpractice myths, including posts about defensive medicine, the realities of malpractice litigation (in which it’s more likely that a negligent doctor will evade responsibility than it is that an undeserving patient will be compensated), and the tricks played to deny injured patients their legal rights, like concealing evidence and intimidating expert witnesses. Just last month I wrote about the hard data on malpractice lawsuits in Pennsylvania.


Why so much focus on malpractice law? Because it seems to be the area of plaintiffs’ litigation most heavily shrouded with myths and misunderstandings. Just last month, one of the New York Times’ bloggers, herself a medical doctor, began a column on the “disturbing” trend of doctors breaking the white coat code of silence by criticizing one another. She gave this example: a physician friend had been recently named in a lawsuit in which, they claim, “there were no discernible errors in the care she provided,” solely because a subsequent physician criticized the first physician, saying they were “shocked” by the care provided and that the patient “could have died.”


I could go on at length about how absurd that factual scenario was — a patient can’t file, much less win, a malpractice lawsuit with “no discernible error;” rather, the patient’s lawyer needs to prove malpractice by way of expert physician testimony — but there’s no need to do that. Just re-read that last paragraph: if the doctor-blogger and her friend really wanted to find the “discernible error,” they could have merely asked the second doctor why he or she was “shocked.”


Such is the low level of debate in the malpractice liability arena. A columnist or a doctor says something dumb, like asserting there’s “no discernible errors in the care” that the next doctor finds “shocking,” and patient advocates and plaintiff’s lawyers scramble to explain how the nitty-gritty of certificates of merits, damage caps, jury instructions, and the like make it impossible for cases to prevail unless they are “slam-dunk” cases with only the very worst outcomes for the patients.


Three stories from last week highlight many of the same issues I keep coming back to on this blog: Continue Reading Medical Malpractice Accountability Plummets, While Malpractice Epidemic Continues Unabated

For years, I’ve written about the prevailing myths about medical malpractice law, from the falsehoods about defensive medicine to the extraordinary economic damage caused by malpractice itself. Contrary to what the insurance companies and hospital lobbying groups keep saying, “defensive medicine” is simply a myth (if a given test didn’t make a patient substantially safer, doctors wouldn’t gain anything by doing it). The damage caused by malpractice — even when measured in purely economic terms, ignoring the non-economic harms and losses — dwarfs the cost of the malpractice legal system, including all the lawyers and all the settlements and verdicts.


Recently, the new statistics for medical malpractice filings and jury trials in 2012 were released, and those numbers revealed a couple of important points.


First, the odds at trial are heavily stacked against patients. In 2012, 133 malpractice cases went to a jury trial, and 79.7 percent of them resulted in defense verdicts. I suppose there could be valid reasons why 4 out of every 5 jury verdicts go in favor of the doctor or hospital — maybe the strongest cases are all being settled before trial, leaving only the weakest cases behind — but it’s hard to say that with a straight face when those figures mean that malpractice defendants have better odds winning in a courtroom than the odds a casino has winning its own games.


It’s hard to deny that plaintiffs are losing trials left and right thanks to years of relentless tort reform propaganda designed to mislead jurors about the nature of malpractice and its effects. It sure seems like some counties have particular problems; consider this paragraph from a recent Legal Intelligencer article: Continue Reading The Reality of Pennsylvania Medical Malpractice

In contrast to the demanding world of blogging, where every typo results in an avalanche of criticism, the beauty of speaking on network television in quaint soundbites and writing 750 word op-ed columns in national newspapers is that you rarely have to explain yourself. You will rarely, if ever, be put in the position where you are expected to fully explain your argument, and, hiding behind the presumed credibility of established newspapers and networks, it isn’t likely that you’ll face a thoughtful critique of your argument. Just say something and, ipse dixit, it’s true. (There are, of course, rare exceptions, like when you make up Bob Dylan quotes, forgetting the legions of obsessed Dylanites out there.)

What else explains how Sanjay Gupta of CNN fame thought he could stick this whopper into his New York Times op-ed piece:

Certainly many procedures, tests and prescriptions are based on legitimate need. But many are not. In a recent anonymous survey, orthopedic surgeons said 24 percent of the tests they ordered were medically unnecessary. This kind of treatment is a form of defensive medicine, meant less to protect the patient than to protect the doctor or hospital against potential lawsuits.

Herein lies a stunning irony. Defensive medicine is rooted in the goal of avoiding mistakes. But each additional procedure or test, no matter how cautiously performed, injects a fresh possibility of error. CT and M.R.I. scans can lead to false positives and unnecessary operations, which carry the risk of complications like infections and bleeding. The more medications patients are prescribed, the more likely they are to accidentally overdose or suffer an allergic reaction. Even routine operations like gallbladder removals require anesthesia, which can increase the risk of heart attack and stroke.

Isn’t it amazing how Dr. Gupta just knows that every last medically unnecessary treatment is a “form of defensive medicine?” There’s a word for Dr. Gupta’s argument. To find that word, let me quote Dr. Atul Gawande in The New Yorker three years ago, himself quoting a discussion among surgeons about defensive medicine:  Continue Reading Atul Gawande Versus Sanjay Gupta On Defensive Medicine

I haven’t written much about medical malpractice lately because, apart from a couple unique cases, it doesn’t feel like there is anything new to say. Medical malpractice is still responsible for less than one-half of 1% of all United States healthcare costs, and it is still the case that even “hellhole” jurisdictions like Philadelphia are nonetheless still so hostile to patients’ lawsuits that three-quarters of injured patients walk away empty-handed from jury trials. (I would be remiss not to mention this recent study further discrediting the “hellhole” data about Philadelphia’s courts.)

But now I have some good news to report: it seems that many of the major medical societies are moving away from blaming lawyers and lawsuits for every problem under the sun, and are starting to take matters into their own hands to reduce the overall cost of healthcare while still protecting patient safety. The new campaign, “Choosing Wisely,” unveiled this week, was organized by the ABIM Foundation, part of the American Board of Internal Medicine (which has its headquarters only a couple blocks from my office). The ABIM Foundation brought together a number of the major physician specialty societies to come up with lists of five things — typically diagnostic tests — that doctors in each specialty shouldn’t do because they are wasteful and unnecessary.

The part that pleasantly surprises me is how the medical societies have all resisted the urge to trot out the “defensive medicine” line, the claim that doctors wouldn’t do any of these tests if it weren’t for the potential for medical malpractice liability.  See, for example, this NPR story and this JAMA article, neither of which quotes a doctor blaming lawyers for every wasteful practice in medicine.

As I have argued many times before on this blog, I think “defensive medicine” is mostly a bunch of hooey.  Contrary to what you hear from some insurance companies and tort reform organizations, medical malpractice lawsuits don’t impact access to care, and don’t cause doctors to order unnecessary tests. To see why lawsuits don’t result in “defensive medicine” requires a bit more understanding about how malpractice lawsuits work:  Continue Reading Choosing Wisely: Healthcare Costs Debate Moves Beyond Defensive Medicine

Through Andy Barovick’s Twitter feed, I saw John Tierney’s recent column in the New York Times about playground equipment:

[S]ome researchers … question the value of safety-first playgrounds. Even if children do suffer fewer physical injuries — and the evidence for that is debatable — the critics say that these playgrounds may stunt emotional development, leaving children with anxieties and fears that are ultimately worse than a broken bone.“Children need to encounter risks and overcome fears on the playground,” said Ellen Sandseter, a professor of psychology at Queen Maud University in Norway. “I think monkey bars and tall slides are great. As playgrounds become more and more boring, these are some of the few features that still can give children thrilling experiences with heights and high speed.”

After observing children on playgrounds in Norway, England and Australia, Dr. Sandseter identified six categories of risky play: exploring heights, experiencing high speed, handling dangerous tools, being near dangerous elements (like water or fire), rough-and-tumble play (like wrestling), and wandering alone away from adult supervision. The most common is climbing heights.

Various tort reformers have long used playground safety to attack personal injury lawyers. Playgrounds are boring these days, the story goes, because evil trial lawyers have forced cities and schools to prioritize safety over fun. The new line these days is that these excessively safe playgrounds aren’t actually safer, because they secretly cause long-term damage so subtle it can barely be perceived.

We’ve seen that line before with the “defensive medicine” meme. Never mind the favorable link between patient-friendly malpractice laws and the availability of treatment; tort reformers claim that doctors exposed to accountability will ignore the basic dictates of economics and, instead of working to reduce their liability by reducing the damage they cause, will inexplicably spend their time and money treating diseases that don’t exist.

Same goes for playgrounds. Tort reforms now say playgrounds are too safe because school administrators, for some unexplained reason, don’t worry about serious injuries — the only thing that can prompt any significant monetary liability — but rather phantom dangers manufactured by trial lawyers.

I think my favorite line from Tierney’s article is this one:

While some psychologists — and many parents — have worried that a child who suffered a bad fall would develop a fear of heights, studies have shown the opposite pattern: A child who’s hurt in a fall before the age of 9 is less likely as a teenager to have a fear of heights.

It logically follows, then, that we could rid society of acrophobia if we passed a law requiring all children be thrown from a height of no less than six feet at least once during adolescence. Perhaps we should  require that, if the child didn’t break a bone the first time around, they be shoved off again and again until they “learned” to be fearless in the face of an unnecessary danger. Continue Reading Playground Safety And The Cheapskate Society

The print edition of September’s Emergency Physicians Monthly features a debate between yours truly and WhiteCoat, EPM’s in-house blogger on the subject, “Does Medical Malpractice Liability Impact Access To Emergency Care?”

I’ve posted the debate below, with footnotes added to show my sources. I believe WhiteCoat will update his with sources when he gets a chance; you can find his post here.

Opening Argument – Max Kennerly

A 2006 American College of Surgeons report[1] concluded, “the single most important factor shaping the [emergency] surgical workforce today is declining reimbursement,” a euphemism for cutthroat health insurer tactics. Last month, Bayonne Hospital sued Horizon Blue Cross Blue Shield for a parade of horribles, such as calling patients, lying about their coverage, and instructing them to leave the ED prior to screening or stabilization.[2]

Against this backdrop, malpractice premiums are at a per-physician thirty-year low. Unbiased analysis of their effect, however, is in short supply. A.M. Best, which rates insurers’ creditworthiness for banks, says premiums represent 0.45% of national health care expenditures[3; see also *]; Towers Perrin, an insurance consulting firm, says 1.5%.[4] Least credible is the American Hospital Association, which relies on the Lewin Group[5], part of Ingenix, a UnitedHealth subsidiary that recently agreed to a $400 million settlement for manufacturing phony fees data to short-change physicians.[6]

After a decade of declining premiums and claims payments in the 1990s, the stock market collapsed, prompting insurers to raise premiums rapidly. In 2003, the peak of the increases, the General Accounting Office surveyed five states with “reported malpractice-related problems” (including Nevada and Mississippi) and four without for the impact of liability on access to care[7]. The GAO found no impact in the latter and “scattered” reductions in the former by providers of ER surgical coverage and obstetricians, most of whom also faulted other “long-standing factors” like reimbursement.  The GAO concluded most reports were “unsubstantiated” and that malpractice liability “did not widely affect access to health care.”

The same report found little evidence of “defensive medicine,” criticizing a widely-cited Health & Human Services report (the source of that “$300 billion” figure) for its transparently flawed generalization from two narrow examples of elderly heart disease treatment. In 2004, the Congressional Budget Office followed up on the H&HS report[8], even using the same methods, yet “found no evidence that restrictions on tort liability reduce medical spending,” deeming the evidence for defensive medicine “weak or inconclusive” and noting “some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients.”

Such did little to stop a wave of “tort reform” in many states, like capping noneconomic damages and eliminating joint and several liability. Several years later, we have control and experimental groups in our laboratory of democracy.

The 2009 American College of Emergency Physicians’ Report Card on the State of Emergency Medicine[9] is a revelation: of the ten states with an “A” or “B” grade for their “medical liability environment” (the most hostile to patients), six had an “F” for “access to emergency care,” one had a “D-,” two had a “C-,” and one had a “B-,” together averaging below a “D-.”  Mississippi and Nevada, too, took WhiteCoat’s “tort reform” advice: years later, they have, respectively, a “C” and “C+” for liability and a “C-” and an “F” for access to care. Conversely, the nine states with an “F” for liability earned the only “A,” had only one “F,” and averaged a “C” for access to care, better than the national average of “D-.”

But, tort reformers say, there are other factors. That’s my point: the impact of malpractice liability on access to care is so small it appears positive because it is dwarfed by other factors such as Aetna, Cigna and WellPoint, all of whom the AMA recently sued[10] for also using the bogus Ingenix database, and the increase in uninsured or underinsured patients. The big change in the past generation has not been an increase in malpractice premiums or claims (both are at historic lows in inflation-adjusted dollars [see 1]) but an extraordinary decrease in reimbursement.

A 2003 AMA report[11] found physicians lost $4.2 billion in annual revenue providing unreimbursed emergency care; compare that loss in a single field to the $4.7 billion paid in 2008 to resolve all malpractice claims nationwide[see 1]. The same study said emergency physicians incurred an annual average of $138,300 in uncollectable fees, double the average insurance premium for specialists and nine times the average premium for primary care physicians. It seems an ounce of reimbursement is worth a pound of tort reform.

Counter Argument – WhiteCoat

Doctors fear malpractice liability. And why shouldn’t they? Last month a woman was awarded $60 million dollars after a cosmetic surgeon allegedly botched her thigh lift. Medical malpractice law firms proudly display news releases about their multimillion dollar malpractice verdicts against physicians.

Does malpractice liability affect access to medical care, though? Access to medical care is limited by two factors: Available providers and willing providers. The best vascular surgery program in the world can’t help you if there’s no surgeon available or if you’re 150 miles away when your aortic aneurysm ruptures. Similarly, an abundance of nearby neurosurgeons helps no one with a brain hemorrhage if none of those neurosurgeons is willing to perform brain surgery.

What factors affect whether a provider is available or willing to provide services? Money undoubtedly affects access to care. Even though patients with Medicaid ostensibly have a means to pay for their care, they often have difficulty finding a physician to treat them because payments do not cover the costs of providing care. In this case, physicians may be available, but they are unwilling to provide care for the proposed payment. Conversely, patients with commercial insurance don’t seem to have such problems.

Liability also affects access to care. At first glance, it is easy to discount that effect. How could something that amounts to only 1.5% of total healthcare expenditures affect a physician’s willingness to provide care? The answer is that direct liability costs are only a small piece of the puzzle. Fear of liability creates a tremendous ripple effect. No physician wants to be at the receiving end of the next $60 million verdict. Residents in high-risk fields cite malpractice costs as by far the largest reason for leaving one state in favor of another. More than half of hospitals in medical liability crisis states have difficulty recruiting physicians, resulting in less physician coverage for their EDs. A survey of some Nevada Ob/Gyns showed that 60% planned to drop obstetrical coverage due to malpractice premium increases. Similarly, many Mississippi Ob/Gyns have dropped obstetrical care due to malpractice liability, leaving some counties with no obstetrical care at all. Trauma centers in several states have temporarily closed due to malpractice issues.

Texas tort reform shows that liability reduction can increase access to healthcare. Since tort reform was passed in Texas six years ago, the number of applications for physician licenses has increased dramatically. The number of emergency physicians has increased in 76 Texas counties – many of which were considered “underserved” for emergency care before tort reform. The number of malpractice insurers in Texas increased from 4 to more than 30 and insurance premiums dropped more than 40%. One Texas health system was able to spend $100 million extra dollars helping poor patients. That money had previously been held in reserves for legal defense fees and insurance premiums.

Some might try to draw conclusions by comparing metrics on ACEP’s Report Card. Doing so does not take into account multiple other factors affecting each metric. We cannot directly compare better access to higher liability any more than we can directly compare better access to colder climate. After all, states that scored worst in “access to care” were exclusively in the South and West United States – which generally have warmer climates.

Finally, defensive medicine costs our system up to $300 billion each year. Eliminating defensive medicine could provide each one of the 46 million uninsured patients in the US with $6500 in health care. Unfortunately, there is little tolerance for errors or misdiagnosis in medicine. While no lawyer will ever admit an expectation that medical care should be perfect, I still haven’t found a lawyer who will give me an example of a heart attack, a ruptured appendix, or a leaking cerebral aneurysm that it is OK to misdiagnose. Instead, doctors perform one low-yield test after another to “prove” that every haystack really doesn’t have a needle in it.

I respect Max and I respect his opinions. It just seems ironic that some of the strongest supporters of the notion that we can “sue our way to better health care” are those who stand to benefit the most from trying to do so.

* * *

Read more about our medical malpractice services.

Professor Richard Epstein of the University of Chicago published an opinion piece in yesterday’s Wall Street Journal on medical malpractice.

"Embarrassingly ignorant" would be a charitable description. Eric Turkewitz calls it "flat out false."

How bad was it? Turkewitz caught two outright falsehoods:

American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury.


American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury.

Neither of these are true, as described in Turkewitz’s article.

But it doesn’t even end there. Here’s another line:

American judges frequently let juries decide whether honest mistakes are negligent.

It is hard to put into words how embarrassing, shocking and insulting it is to see a law professor who has written textbooks on torts question how we (or who we let) "decide whether honest mistakes are negligent."

An "honest mistake" is negligent. It’s what it means to have been negligent: you made a mistake. You neglected your duty. You failed to exercise the care that a reasonable, prudent person would exercise under the same circumstances. If a physician had intended the harm, it wouldn’t be medical malpractice, it would be battery, an intentional tort.

And that is how it should be: a physician should be responsible for damages they caused the patient by neglecting their duty. If the patient neglected to drive safely, ran a red light, and injured the physician, the patient would be responsible for the damages they caused the physician. It’s why we have insurance: to pay for the damages we mistakenly cause others.

Putting aside Professor Epstein’s "honestly mistaken" description of medical malpractice law, let’s consider his solution to the "disturbing" medical malpractice system (which he vaguely and ridiculously concludes causes a full 10% of US health costs by way of defensive medicine):

What is needed is the replacement of juries with specialized commissions like those in France, which help reduce litigation expenses and promote uniformity in case outcomes across regions.

Naturally, Epstein doesn’t go into any detail about his proposal, so there’s nothing even to critique.

On the subject, however I recently noted that Philip K. Howard’s health courts proposal (in the New York Times) was "unlikely to make results any more ‘reliable’ than now, unless you presume that judges are systematically biased in favor of one side or the other" and that "Howard’s process for choosing a ‘neutral’ expert and the materials they opine on will probably make medical malpractice litigation more contentious, expensive, and uncertain."

Epstein’s ephemeral proposal would likely suffer the same problems if he actually spelled out the details. But he has no need to worry about that, he can just ‘negligently’ draft a new column filled with errors about some other field of law.

Finally, he concludes:

The best reform would be to allow physicians, hospitals and patients to contract out of the liability mess by letting the parties reject state-imposed malpractice rules. They could, for example, choose to arbitrate, to waive jury trials, or to limit damage recovery. Stiff competition and the need to maintain reputation should keep medical providers in line in such a system.

That is to say, Epstein wants to transplant to medicine the same fine extrajudicial system we use for credit cards, used car buying, and check-cashing.

Thanks, but no thanks.

Via Overlawyered, the NYTimes says:

In closed-door talks, Mr. Obama has been making the case that reducing malpractice lawsuits — a goal of many doctors and Republicans — can help drive down health care costs, and should be considered as part of any health care overhaul, according to lawmakers of both parties, as well as A.M.A. officials.

It is a position that could hurt Mr. Obama with the left wing of his party and with trial lawyers who are major donors to Democratic campaigns. But one Democrat close to the president said Mr. Obama, who wants health legislation to have broad support, views addressing medical liability issues as a “credibility builder” — in effect, a bargaining chip that might keep doctors and, more important, Republicans, at the negotiating table.

The story (and apparently Obama) is exceedingly light on details, but suggests:

Mr. Obama has not endorsed capping malpractice jury awards, as did his predecessor, President George W. Bush. But as a senator, he advanced legislation aimed at reducing malpractice suits. And Dr. J. James Rohack, the incoming president of the medical association, said Mr. Obama told him at a meeting last month that he was open to offering some liability protection to doctors who follow standard guidelines for medical practice.

And any effort to restrict patients’ legal rights to sue will face tough opposition from the American Association for Justice, which represents trial lawyers and has met with Nancy-Ann DeParle, Mr. Obama’s point person for health reform, to express its concerns. Linda Lipsen, the association’s chief lobbyist, said practice guidelines were established by unregulated medical societies and “should not be conclusive” in a court of law.

What’s that mean? I don’t really know — I suppose they want to make guidelines from the American College of Obstetricians and Gynecologists and the American College of Emergency Physicians have the force of law, or they want to incorporate them as a presumption of meeting the standard of care.

Without more detail, it’s hard to comment on the effects of it. Yet, incorporating these guidelines could make the medical malpractice process even more litigious, since lawyers will argue over whether the guidelines applied and whether the doctor followed them.

With regard to the idea of incorporating them, as I wrote before discussing Comparative Effectiveness Research ("CER"), also pushed by Obama:

Put simply, CER will cut both ways. A doctor who does not utilize a CER-approved treatment will have a lot of explaining to do down the road if that treatment would have helped. Conversely, a plaintiff alleging a doctor should have used a CER-disapproved treatment will have a hard time convincing a jury that the doctor should have overridden the billion-dollar research.

From a liability / malpractice standpoint, doctors who abide by the standard of care should welcome the CER with open arms, as it will give them a powerful tool to wield when a plaintiff’s lawyer later asks "why didn’t you do _____?" They can quite honestly answer "because the CER says it’s not effective."

That may apply the same to "College" guidelines. One problem, as mentioned above, is that the guidelines aren’t necessarily set based on empirical data, and they’re not reviewed by outside sources prior to publication. 

We’ll have to wait and see for more information.

[UPDATE: Obama’s speech to the American Medical Association included:

I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. And while I’m not advocating caps on malpractice awards — which I believe can be unfair to people who’ve been wrongfully harmed — I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.

So he might be talking about CER after all. If so, I think that’s a good thing for everyone. One problem for both physicians and plaintiffs is that, in many areas, the "standard of care" is frustratingly unclear. If CER can be used to create those standards, all the better.]


Not too long ago, I believe at the recommendation of Walter Olson at Overlawyered, I started reading WhiteCoat Rants (renamed WhiteCoat’s Call Room when he moved to Emergency Physicians Monthly), an anonymous blog authored by a voluble ED doctor.

I have over 300 feeds in my Google Reader, including venture capitalists, scientists, professors, economists, security professionals, and ship captains, and while I frequently read Grand Rounds, I didn’t regularly follow many practicing physicians.

So, what the heck.

I didn’t expect to comment or to debate, just get another perspective. I have my own blog in part to channel the temptation to respond when Someone Is Wrong On The Internet into a more productive form. That said, I think it’s worthwhile to chime in on another blog when I think it will add value to the discussion, which is what happened with WhiteCoat’s defensive medicine post, my response, his reply, and my sur reply.

Defensive medicine is a controversial topic made worse by the absence of good empirical data about its existence or prevalence. A GAO study in 2003 found the effect to be minimal and possibly non-existent, and I think the whole idea of “defensive” medicine is conceptually flawed, but it’s such a broad, hot-button subject that I don’t expect many minds to change one way or another over it.

I didn’t expect the same for EMTALA.

Here’s the American Academy of Emergency Medicine (AAEM):

The Emergency Medical Treatment and Active Labor Act (EMTALA) was included in the COBRA legislation of 1986. It was promulgated to combat the discriminatory practice of some hospitals transferring, discharging, or refusing to treat indigent patients coming to the emergency department because of the high cost associated with diagnosing and treating these patients with emergency medical conditions. While the Act applies to all Medicare participating hospitals, it protects anyone coming to a hospital seeking emergency medical services, not just Medicare beneficiaries. EMTALA imposes strict penalties including fines and exclusion from the Medicare program for violations of the Act. The Act imposes three primary requirements on Medicare participating hospitals that provide emergency medical services.

  • The hospital must provide an appropriate medical screening exam to anyone coming to the ED seeking medical care;
  • For anyone that comes to the hospital and the hospital determines that the individual has an emergency medical condition, the hospital must treat and stabilize the  emergency  medical    condition, or the hospital must transfer the individual; and
  • A hospital must not transfer an individual with an emergency medical condition that has not been stabilized unless several conditions are met that includes effecting an appropriate transfer.

Emphasis mine to highlight some issues.

In my view, EMTALA reflects the way that most people expect an emergency department to function. If you go to an emergency department, they will check to see if you have an emergency and, if so, will treat you until you no longer have an emergency. The outrage that follows every “patient dumping” story supports this view; it’s also no small matter that the winning Presidential candidate explicitly endorsed medical care as a “right.” (EMTALA implicitly creates a “right” to emergency medical screening and stabilizing at Medicare-recipient hospitals by permitting patients to sue if they are denied that “right.”)

I’m not surprised that emergency physicians dislike a law that requires they spend their time (and hospital resources) screening and stabilizing individuals who often can’t or won’t pay, at least not pay enough, particularly as emergency departments increasingly become the de facto primary care physicians for millions of Americans. It gives them the burden of being a first-responder without the benefit of stable salaries and guaranteed government funding.

What surprised me was the anathema was directed at the concept of EMTALA rather than the execution, even as the physicians spoke of wanting to ensure access to healthcare for all.

Just as most people expect the ED to check them out when they have a problem, most people expect that the ED will be funded in some reasonable fashion. If you have private insurance, your insurance will be billed. If you are on Medicare, Medicare will cover. If you are impoverished, Medicaid will cover, even for undocumented aliens.

But that’s not how it works in the real world. There’s a reason that an industry like “professional coding” — not even middlemen, but people who input data for use by middlemen! — exists. Health insurance companies routinely deny reasonable care already performed. Medicare reimbursements are low and difficult to process, and Medicaid is worse than Medicare and not even fully funded in the first place.

Some suggestions for reforming the economics behind emergency medicine make sense, like this one from the American College of Emergency Physicians:

Some health insurance plans deny claims for legitimate emergency departments visits, based on a patient’s final diagnosis, rather than the presenting symptoms (e.g., when chest pain turns out not to be a heart attack). Some also attempt to require preauthorization before a patient can seek emergency medical care, resulting in denied payment. These managed care practices endanger the health of patients and threaten to undermine the emergency care system by failing to financially support America’s health care safety.

ACEP advocates for a national prudent layperson emergency care standard that provides coverage based on a patient’s presenting symptoms, rather than the final diagnosis. In addition, health insurers should cover EMTALA-related services up to the point an emergency medical condition can be ruled out or resolved.

But for every specific, reasonable proposal like that, you get a complaint like this (also from ACEP):

According to a May 2003 American Medical Association (AMA) study, emergency physicians annually incur, on average, $138,300 of EMTALA-related bad debt. Approximately 95.2% of emergency physicians provide some EMTALA mandated care in a typical week and more than one-third of emergency physicians provide more than 30 hours of EMTALA-related care each week.

Sounds bad, but those figures are useless since they’re a mish-mash of several distinct problems.

What does “EMTALA-related” mean? A prior paper of ACEP’s defined “uncompensated care” and “bad debt” as any care where the physician or hospital collected less than they billed, which means every denied private insurance claim, every denied Medicare claim, and every denied Medicaid claim in addition to the totally unreimbursed care most people assume is meant by “EMTALA-related.”

Which means the “EMTALA-related” figure above conflates every single billing issue affecting emergency departments into “EMTALA-related bad debt,” even where most of it has nothing to do with EMTALA.

Combine that with self-congratulatory, self-contradictory praise like “Emergency physicians are proud to serve as an essential part of the nation’s health care safety net, open 24/7, caring for everyone, regardless of ability to pay or insurance status,” and you have to wonder if anything’s actually wrong with the system if they “proudly” follow EMTALA’s dictates yet blatantly manipulate numbers to oppose EMTALA itself.

That’s what I wanted to describe to WhiteCoat when he again raised the specter of EMTALA as the cause of several ED stories, including the closing of the ED at Northeastern Hospital here in Philadelphia. I posted a comment.

He took it to heart.

I don’t agree with his conclusions (no surprise), and a discussion on the merits is best left until later, but it’s gratifying to see that I could offer him and his readers a different perspective, just as they’ve offered me.