
A Fear of Lawsuits Really Does Seem to Result in Extra Medical Tests - montrose
https://www.nytimes.com/2018/07/23/upshot/malpractice-lawsuits-medical-costs.html
======
rayiner
> Any law that limits the cases where patients can sue, or the amount of money
> they can collect, is likely to lower medical use in the hospital by less
> than the 5 percent they measured in their study.

The telling thing about laws to address malpractice liability is that they
typically are focused on capping large verdicts. But such laws are illogical:
generally, large verdicts will be awarded where a doctor screwed up and caused
the most damage. Cases with large verdicts are the most meritorious ones, and
the ones where limiting liability is least likely to eliminate over-testing
that does not contribute to quality of care.

If states actually wanted to address the costs of defensive medicine, they
would do something like create affirmative defenses for doctors who adhered to
certain established testing protocols.

~~~
arkades
Showing you adhered to protocol _is_ a valid defense. The problem is twofold:

(1) Your insurer will usually prefer to settle rather than go to court, it's
cheaper, so fuck your defense.

(2) You still take the reputational and emotional hit of being sued.

People discussing this rarely seem to get that docs are far more emotional
about this than the money at risk merits. There are many things in play beyond
"I don't want to lose a lawsuit." We really do get very upset about
malpractice suits, for many reasons beyond our premiums going up.

~~~
TeMPOraL
> _People discussing this rarely seem to get that docs are far more emotional
> about this than the money at risk merits._

There's also the risk of losing right to practice medicine - that is, being
banned from providing the very service you spent the best part of your life
specializing in.

------
jl2718
Extra tests... the cost of diagnostics is a tiny fraction of the cost of
doctor time, and most patients just go to the doctor to get the test. The
doctor is an irellevant gatekeeper 90% of the time. How about we start talking
about ‘extra’ doctor visits because patients don’t have access to tests. There
are some diagnostics where this gatekeeping is literally causing a public
health crisis. ‘Extra tests’ are only an issue because of the untreated
disease they reveal, which costs insurers money to treat. This ‘concern’ is
all part of their lobby.

~~~
patrickg_zill
That is very accurate... I had an injury that I knew required specific
surgery, but when I called the surgeon's office to make an appointment I was
told that they only accepted referrals from family doctors, that is, I had to
pay to visit a family doctor first.

This applies nowadays to most specialists as well.

~~~
SkyPuncher
I don't really consider this a problem.

Specialists are packed to the gills already and very expensive. Specialists
don't want to spend time with patients who don't actually need specialized
care and insurance doesn't want to pay specialists without first qualifying
the issue.

~~~
patrickg_zill
I agree; however the first thing he did was to order a CT scan to confirm the
diagnosis and get the exact location. So the family doctor visit was thus
duplicative.

~~~
imglorp
I hope the specialist didn't get a kickback from the imaging company

~~~
ryandrake
The US healthcare system is a raging river of money, and you can bet that
every doctor, lab, hospital and other medical service has their buckets dipped
into it. The entire system seems to be set up to squeeze as many billable
office visits out of you as possible.

------
mattnewton
So make tests cheaper - sounds like an opportunity that gets a win for
everyone without political miracles.

(I don’t know the market I am talking about at all, but) Maybe they could
incentivize cheap tests by capping the cost per test that can be administered
without some large red tape process. The market will provide tests under that
cap where possible, so they can be administered more frequently &
frictionessly. Patients are thoroughly tested, Doctors cover their butts, and
test supply companies get to keep selling lots of tests.

~~~
subhobroto
EXACTLY! I wrote about this here:
[https://news.ycombinator.com/item?id=17620197](https://news.ycombinator.com/item?id=17620197)

------
patrickg_zill
Wait until the NY Times finds out that c-sections have greatly increased
because of high-dollar awards like the one that made John Edwards (yes the
politician) a millionaire...

~~~
everdev
My wife is a doula and apparently the injury and mortality rates for mother
and child are much higher than through natural childbirth.

But because of their insurance coverage, if a mother or baby dies during
natural childbirth the doctor is at greater risk for malpractice. So, they
will rush mother's into C-section at any excuse (it saves them hours of work
too not having to sit through a long labor).

Unfortunately, money and efficiency have taken priority over natural
processes.

~~~
rayiner
> My wife is a doula and apparently the injury and mortality rates for mother
> and child are much higher than through natural childbirth.

That is of course true, because C sections are primarily used in high-risk
pregnancies and in emergencies. But what you actually care about is the
counter-factual: if a given set of deliveries were "natural" rather than a C
section, would mortality go up or down? It's hard to develop studies to answer
that counter-factual. But there is good evidence that C-section rates are
negatively correlated with mortality ( _i.e._ they lower deaths) up to about
20% of deliveries, and have no positive or negative effect beyond that:
[http://www.skepticalob.com/2017/10/more-wailing-and-
gnashing...](http://www.skepticalob.com/2017/10/more-wailing-and-gnashing-of-
teeth-over-the-c-section-rate.html).

Indeed, there is new evidence that "natural" births are in the long term bad
for mothers, dramatically increasing the risk of things like incontinence
later in life: [http://www.skepticalob.com/2018/03/what-if-c-sections-are-
be...](http://www.skepticalob.com/2018/03/what-if-c-sections-are-better-and-
safer-than-vaginal-birth.html). As a practical matter, these negative effects
will impact far more women than differences (if any) in morality rates.

~~~
tptacek
A nit: is it really true that C sections are primarily for high-risk
pregnancies? C sections are at an all-time high. Both my kids were delivered
by C section after attempts to induce labor, but those inductions were based
simply on calendar due dates assigned early in the pregnancy. People schedule
C sections in advance.

More importantly: anyone who has had a C section before is likely to deliver
all future children via C section; it's not a requirement, but a normal birth
after C section is a special arrangement.

Finally: C section itself is a traumatic surgery with long-lasting health
effects for the mother. It's routine, but still a big deal.

~~~
dragonwriter
> A nit: is it really true that C sections are primarily for high-risk
> pregnancies?

C-sections are _very disproportionately_ used for those, though perhaps not
primarily; in relation to the risk statistics upthread, is the same basic
impact. You cant just compare adverse outcome rates for C-section and vaginal
birth without taking into account factors associated with adverse outcomes
which also make C-section a more likely event.

~~~
tptacek
I don't think this is unknowable; just a couple minutes of Googling turned up
a bunch of studies. Consumer Reports posted an analysis from journal articles
indicating that maternal mortality from C sections is strongly correlated with
specific hospitals; since the predicates for an emergency C section generally
_aren 't_ correlated, that strongly suggests it's the procedure and not the
circumstances that are to blame. The major causes of mortality due to C
section include sepsis and anaesthesia errors (this happened to my wife during
the birth of our first kid), which are also intrinsic to the surgery and not
to the circumstances of the pregnancy.

------
dahdum
Aren't a lot of these costs baked into all services due to malpractice
insurance itself? If these doctors could be sued by some of their patients
(the families), they still need to cover the cost of that insurance.

Beyond that, once defensive medicine is the status quo, why would they make a
choice to not order their usual defensive panels? They aren't paying for them
themselves.

~~~
mrfredward
True, but here's a point the NYT missed: caps on malpractice claims don't have
to change how doctors practice medicine to reduce costs. By capping liability,
they should make malpractice insurance cheaper and thus reduce the cost of
providing care.

~~~
dragonwriter
Caps on malpractice claims exist in numerous jurisdictions, and studies have
shown them to have no discernable effect on either total healthcare costs or
even specifically on malpractice insurance costs.

~~~
briandear
I am sorry but you are just completely wrong. Exactly the opposite of what you
said is true:

[https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5701901/](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5701901/)

“In summary, there exists considerable evidence that medical malpractice
reform measures reduce medical malpractice awards and also the losses incurred
by medical malpractice insurance companies.”

~~~
Digory
Reduced Awards =! Reduced Premiums or Costs

Texas seems to have set caps so low that it has reduced premiums for doctors.
But "making malpractice cheaper" isn't much of a policy goal.

Nationally,'tort reform' caps have had mixed results. "...better-designed
studies show that damages caps reduce liability insurance premiums. The
effects of damages caps on defensive medicine, physicians’ location decisions,
and the cost of health care to consumers are less clear." [0]

[0]
[https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690332/](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690332/)

------
zelon88
I thought medical errors were the third leading cause of death in the U.S.
with 10% of all deaths attributed to medical error.

With that error rate, is it fair to say that the extra tests are truly
"unnecessary?"

~~~
LorenPechtel
That's a severe distortion of the reality. Most of those "errors" are not a
healthy patient dies, but cases where the patient was dying, the only question
being exactly when.

------
howard941
Link to the study:
[http://www.nber.org/papers/w24846](http://www.nber.org/papers/w24846)

------
dhdhshd
Bone marrow biopsies suck. And on top of that I have to be thankful I don’t
have cancer while the bills keep coming.

------
subhobroto
I see no issue with Extra Medical Tests. More data points do not hurt a
diagnoisis if a proper scientific method is followed.

The primary issue here is the resulting cost.

As the article points out: "about 26 percent of every dollar spent."

You probably won't complain paying 26 cents for a $1 popsicle, but if the same
popsicle cost you $100, you might be upset paying $26.

But is not the bigger question: Why is the popsicle $100 when it could have
cost $1?

Here is a useful chart to show where the money goes:
[https://qph.fs.quoracdn.net/main-
qimg-d68aea3ca1e466f166752e...](https://qph.fs.quoracdn.net/main-
qimg-d68aea3ca1e466f166752e261b9e28d3)

Where do you think malpractice costs fit there?

I personally feel sad everytime malpractice fears enter the discussion of
costs - its a tiny, ignorable portion right now of total expenses.

However, to a typical layperson, it sounds like a big deal to worry about but
actually distracts the attention costs should be getting.

As a result, I have tried to cover it here: [https://www.quora.com/Why-does-
one-believe-that-malpractice-...](https://www.quora.com/Why-does-one-believe-
that-malpractice-insurance-is-the-primary-reason-for-US-health-care-being-so-
expensive)

Real input from real practitioners in the industry in the real world.

Sure, Malpractice overhead exists but it's analogous to a drop in the ocean.
There is severe waste elsewhere that need to be handled first.

It's a nosebleed in a patient hemorrhaging blood through a punctured artery.

The argument that ordering extra tests offer doctors "additional defense" in
case of a lawsuit is absolute hogwash. If anything, the test results put the
doctor at a further disadvanatge wrt defense because they had an additional
datapoint they should have considered in their diagnoisis but did not.

The primary issue with Healthcare in the U.S. is cost - for those who have the
money and the will to spend it, it's one of the best in the world. A lot of
the rich visit the US for their Healthcare needs.

Healthcare in the U.S. is optimized for profit: [https://www.quora.com/What-
makes-the-US-healthcare-system-so...](https://www.quora.com/What-makes-the-US-
healthcare-system-so-expensive-Why-is-the-US-so-expensive-compared-to-
Canada/answers/33451192)

This is very wrong as it encourages short term profit seeking behavior which
is absolutely the opposite of what healthcare should be (eg: C Sections being
preferred over natural but long childbirth)

A for-profit system does not help the doctor/provider either (although it
gives an illusion of it) - in such a system, the patient's only recourse is to
sue the doctor/provider for damages instead of both parties focusing on the
root cause which brought the patient to the doctor/provider in the first
place.

Extra Medical Tests might be suboptimal but the real pain points are the
marginal costs of each test.

Tests in the U.S. are extremely expensive. There is no standardized pricing
for any test in the U.S. unlike the rest of the world.

While the rest of the world has pretty much agreed, for example, that a blood
group test might be no more than $10 (In India, it costs 20 cents upto 70
cents at current INR-USD exchange rates), in the U.S. depending on which lab
you go to, your insurance coverage, your ability to pay and other factors, you
might be billed anywhere from $0 - $2000.

That is completely insane.

Also, labs in the U.S are not setup to take requests from customers directly.
There are kits you can order and all that

Everytime I try to send a blood sample to a lab on my own, the lab staff seem
to be lost - they want my insurance information, my EHR information, my NPI ID
and when I explain to them I am not a doctor they ask me to provide my
physcian's who ordered the test. (my physcian didn't order the test - I did).

I have had a few labs bill me outrageous out of network fees because the lab
tests were not ordered by an in network provider (because I ordered them and I
am not a doctor) and the amount of calls and paperpushing I had to do to
correct the billing has made me just give up and let a doctors office handle
this.

I can read a lipid panel. I don't need to go to a doctor's office to drive in
traffic, wait an hour or more just to draw my blood and have it sent to a lab
and then have the doctor read the panel to me. I read spreadsheets every hour
of the day. I know what mean median and mode is and the lab result often offer
these values anyways as part of the report.

I just need the test report.

Now, if my HDLs are too high and I cannot figure out why, sure, I do need to
discuss this with a professional.

The solution to this madness?

An "all payer rate set" system. EVERYONE pays the same for the same procedure.
Who pays for the care, while important, comes later, not before.

~~~
Fomite
"More data points do not hurt a diagnoisis if a proper scientific method is
followed."

Excess tests result in a higher number of false positives. This is just math.
And those false positives have consequences.

~~~
subhobroto
> Excess tests result in a higher number of false positives

True, but this is an engineering problem:

1\. Just because some tests have a higher number of false positives does not
mean all tests have a higher number of false positives

2\. For those tests that do have a higher number of false positives, the well
educated (and paid) professionals are aware and should have measures in place

Eg: Bloom filters are fantastic datastructures to test membership. However,
they have false positives. We can control the probability of getting a false
positive by controlling the size of the Bloom filter.

This is nothing new in engineering.

~~~
conanbatt
Medicine is not engineering.

> Just because some tests have a higher number of false positives does not
> mean all tests have a higher number of false positives

No, but doing more tests leads to more false positives, which can lead to
disastrous consequences. For example, someone could think they have aids
through a false positive and lose their family, or choose to make an abortion,
or start consuming preventive dangerous drugs, etc.

Not only that, you can bankrupt someone. It would surprise many how medicine
is practiced differently based on available costs!

> For those tests that do have a higher number of false positives, the well
> educated (and paid) professionals are aware and should have measures in
> place

Yes, the measure is not to do them unless the symptoms and the DDX fit, along
with other criteria.

I wonder what kind of doctor you've been to.

------
briandear
Is there empirical evidence for “Defensive Medicine?”

[https://www.ncbi.nlm.nih.gov/pubmed/19201500/](https://www.ncbi.nlm.nih.gov/pubmed/19201500/)

“The net effects of medical malpractice tort reform on health insurance
losses: the Texas experience”

[https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5701901/](https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5701901/)

------
joshuaheard
If a doctor is sued for malpractice, that means they made a mistake. If they
are performing extra tests to avoid malpractice, that means they are
performing extra tests to avoid making mistakes. That is a good thing.

~~~
psychometry
There's an error in literally every sentence you just wrote.

1\. A person can be sued without being guilty in a criminal or civil sense.

2\. They are performing extra tests to cover their asses, not to avoid making
mistakes.

3\. It is clearly not a good thing as shown by the authors of the study.

~~~
joshuaheard
I'm a lawyer and have sued doctors for malpractice. Before bringing such a
lawsuit, the lawyer hires an expert witness, another doctor, who testifies
there is malpractice. Then, you are facing a deep-pocket insurance defense law
firm. Med mal cases are costly and in some states, the damages are limited. No
med mal lawyer worth their salt would bring a case unless there was clear
malpractice.

Most med mal cases are failure to diagnose. That is, the doctor fails to find
out what is wrong with you, and you are harmed as a result. If the doctor runs
a battery of tests, however, they can properly diagnose the disease and not
harm the patient. For a nominal fee, the doctor can save someone's life. This
may be bad for the system as a whole, but it is good for the individual
patient.

~~~
MaupitiBlue
Fellow trial lawyer here, and ditto.

For context, a “simple” failure to diagnose case against a radiologist is
going to cost me close to $20,000 out of pocket, and hundreds of hours of my
time - not something I do on a whim.

A judges’s admin assistant that I frequently deal with recently retired.
Someone asked her what advice she had for attorneys. Her response - don’t file
med mal cases because they’re losers, and I practice in one of the top 5
“judicial hell holes” in America.

------
sandworm101
>> In the federal government and in states, there are frequent proposals to
limit medical liability, but there have been no serious efforts to eliminate
medical malpractice rights altogether.

Damb right. Take away a patient's right to hold doctors accountable and things
go south very quickly, at least in a for-profit systems.

>>But American doctors often rail against the country’s medical malpractice
system, which they say forces them to order unnecessary tests and procedures
to protect themselves if a patient sues them.

The patient can only sue if the patient has been harmed. They aren't
performing the extra tests in case just wakes up and decides to sue them. They
perform the extra tests so that they don't miss something that could harm the
patient so badly that they sue.

Doctors also forget that, again only in the US system, patients often _must_
sue. A harm caused by malpractice isn't always covered by insurance. Patients
need to find the money somewhere. Or if an insurance company does cover, the
insurance company will then sue the malpracticing doctor (google
"subrogation").

A few years ago several states had liability caps ready to become law (iirc
$250k). Then a young woman lost both her breasts after a mixup in test results
caused her doctor to recommend a double mastectomy. But at least she could
still function relatively normally and the injury was not a financial burden.
Imagine the costs associated with a 20yo confined to a wheelchair for the next
60+ years. Setting aside medical expenses, 250k buys you maybe four or five
converted vans. While some cases are rightly suspect, many of the multi-
million dollar settlements really do get spent on legitimate costs.

~~~
darkerside
> Damb right. Take away a patient's right to hold doctors accountable and
> things go south very quickly, at least in a for-profit systems. The study
> cited in the article would seem to rebut that quite vigorously.

FTA: > They found that the possibility of a lawsuit increased the intensity of
health care that patients received in the hospital by about 5 percent — and
that those patients who got the extra care were no better off.

~~~
mywittyname
An side of this that most people aren't aware of is that insurance companies
will refuse to pay for any medical test _they_ deem to be unnecessary. So,
while a doctor may order additional tests to "CYA," it's pretty likely that
the hospital won't be reimbursed for all of them and will just eat the cost of
the tests. And, while a hospital may charge thousands for a test, the actual
costs might only be in the hundreds. Depending on the hospital system, this
can be a win-win because the tax write-off can be worth more than the actual
test costs.

The healthcare system in the US is insane.

~~~
ryandrake
> So, while a doctor may order additional tests to "CYA," it's pretty likely
> that the hospital won't be reimbursed for all of them and will just eat the
> cost of the tests.

What? In the USA, it’s the _customer_ who eats the cost of the test. 1. The
doctor tells you to go do all these tests. 2. Neither the doctor, the testing
lab, the hospital, or the insurance company knows which ones will be covered
by insurance. 3. You do the tests. 4. Insurance company, months later, says
“Surprise, sucker! We won’t cover these tests so you have to pay $N,000!” 5.
The lab and doctor says “You signed the paper agreeing to cover the costs.
F-you Pay me.”

