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Stronger Malpractice Laws Don’t Reduce Complications

Stronger Malpractice Laws Don’t Reduce Complications
Author Information (click to view)

Skeptical Scalpel

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last six years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog has had more than 2,500,000 page views, and he has over 15,500 followers on Twitter.

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Skeptical Scalpel (click to view)

Skeptical Scalpel

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last six years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog has had more than 2,500,000 page views, and he has over 15,500 followers on Twitter.

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A study of over 890,000 Medicare beneficiaries shows that states with malpractice environments unfavorable to physicians do not see improved postoperative outcomes for 11 different types of mostly elective major operations.

States with higher general surgery malpractice insurance premiums had significantly more episodes of postoperative sepsis, pneumonia, acute renal failure, and gastrointestinal bleeding.

Those with higher numbers of paid claims per 100 physicians had more postoperative myocardial infarctions, surgical site infections, acute renal failure, hemorrhage, prolonged length of stay, readmissions, and deaths.

When a composite score was used to judge malpractice environment, patients in states with higher malpractice risk settings continued to experience more postoperative complications.

So much for the theory that malpractice suits influence doctors to be more careful and improve quality of care.

States with tort reforms such as attorney fee limits, damage caps, and pretrial panels saw neither increased nor decreased rates of 30-day complications.

The procedures studied were resections of the colon, rectum, lung, esophagus, urinary bladder, and pancreas and total knee replacement, craniotomy, gastric bypass, abdominal aortic aneurysm repair, and coronary artery bypass graft.

In a Reuters story about the paper, senior author, Dr. Karl Y. Bilimoria, Director of the Surgical Outcomes and Quality Improvement Center at Northwestern University, said the risk of litigation did not result in better outcomes. He added, “It doesn’t really work—malpractice environment doesn’t influence doctors to provide better care. Rather, it may lead to defensive medicine practices where more tests and treatments are ordered unnecessarily just to try to minimize malpractice risk.”

The paper points out that defensive medicine can lead to overdiagnosis and overtreatment which may cause more complications.

Can anything be done?

Harvard physician/economist Anupam B. Jena said, “Changing the standards against which physicians are judged, either by ensuring that all states adopt national standard laws, or using administrative courts that hold physicians to a pre-specified clinical standard, are ways that I think the malpractice system can be leveraged to improve quality.”

The states? They can’t even agree to a nationwide standard for medical licensing. Who would decide what “pre-specified clinical standard” should be used? Standards change frequently, and many are controversial. Would the plaintiffs’ bar ever agree to the use of administrative courts? Ha, ha.

Lacking the gravitas of Dr. Jena’s Harvard connection but having almost 20 times as many Twitter followers, I say his proposals will never happen.

 

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last six years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog has had more than 2,500,000 page views, and he has over 15,500 followers on Twitter.

2 Comments

  1. The authors seem to be trying to avoid reaching the most obvious conclusions.

    For example, they note, “Greater general surgery malpractice insurance premiums were significantly associated with a greater likelihood of postoperative sepsis (OR 1.26, 95% CI 1.11-1.43), pneumonia (OR 1.13, 95% CI 1.07-1.20), ARF (OR 1.09, 95% CI 1.03-1.15), and GI bleed (OR 1.03-1.23).” The most obvious conclusion is: premiums are higher where doctors are more negligent. It makes no sense to work backwards from premiums as if that was a causal factor in negligence. It makes way more sense to assume premiums go up where doctors are negligent.

    To put it another way, if car insurance premiums were high in a state, would you assume that meant (a) the drivers in that state were more likely to cause accidents or (b) the drivers are choosing to drive more poorly in response to higher premiums? Obviously, answer (a) is a far more likely explanation than (b).

    They did the same thing with claims per 100 physicians. They said, “In states with higher numbers of paid claims/100 physicians, a higher likelihood of MI (OR 1.09, 95% CI 1.01-1.17), SSI (OR 1.13, 95% CI 1.07-1.20), ARF (OR 1.09, 95% CI 1.03-1.15), hemorrhage (OR 1.17, 95% CI 1.04-1.31), prolonged LOS (OR 1.12, 95% CI 1.07-1.17), readmission (OR 1.16, 95% CI 1.10-1.22), and mortality (OR 1.08, 95% CI 1.02-1.15) were noted.”

    The obvious explanation is: there are more paid claims in states with more negligence. If there are more car accidents payments per drivers in a state, do we assume that’s because car drivers have noticed there are more payments and so choose to do a worse job?

    But the biggest flaw of all is the malpractice law “index.” Their index makes no sense. For example, it includes “lawyers per capita.” Why? The vast majority of lawyers do not practice plaintiffs’ medical malpractice law. In terms of the law, it’s an exceedingly narrow field, with a tiny number of practitioners. That seems to me like one of many variables arbitrarily added to create the result they wanted.

    Reply
    • Great comments. You did a better job of analyzing the paper than I did.

      Reply

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