Okay. Maybe I did. A little. I’m only human. I maintained that tort reform is necessary but not sufficient to change practice patterns. The ACC News Digest just cited the following:

The Fort Myers News-Press (9/11, Gillespie) reported, “In the six years since Florida put limits on damages in medical malpractice lawsuits, insurance premiums and lawsuits have dropped,” yet “physicians — including those in Lee County — continue ordering billions of dollars worth of extra tests.” The paper noted, “In Lee, lawsuits have dropped from about 35 per year in the early 2000s to about 18 per year since 2004.” Meanwhile, “as Washington debates health care, the nonpartisan Congressional Budget Office estimates $41 billion could be saved over nine years if tort reform were put into place nationwide, capping awards and dropping lawsuits. Studies show defensive medicine…accounts for between $60 billion and $200 billion in costs of the $2 trillion health care system.”

Physician practice patterns are influenced by many things in addition to fear of legal reprisal: science, including clinical trials, training, including its inherent biases, especially where the science is weak, level of experience, patient expectations, community practice patterns (which itself is influenced by the same variables), and finances. Even good, honest physicians, as I’ve stated previously, will be influenced insidiously, and sometimes overtly, by reimbursement patterns. A practice is a business, and it isn’t possible to maintain a fixed overhead and meet payroll with progressively declining compensation. Most physicians don’t have any wiggle-room to leverage their time any further.

The government, through Medicare, deals with the money shortfall by looking at the tests that are ordered the most and slashing fees, a blunt, crude method of cost management that might encourage the few less than scrupulous practitioners to churn faster and penalize the cost-effective ones. In the long term, it will probably fuel the already declining physician office hours and drive more to retire early. Clearly, the end-game is to reduce physician expectations with respect to salary. Like everything in life, this comes at a cost: physician shortfalls, access problems, a greater number of less adequately trained physicians from outside our borders, and mid-levels (nurse practitioners and physician assistants). While there is a place for mid-levels in the care continuum, they can’t fill the role of the physician in as many instances as the government might hope. With the avalanche of chronically ill, long-lived baby boomers being injected into the system, we’ll need all the physician hands on deck we can manage.

No, only a cogent, well thought out plan that increases efficiency and excises waste can hope to keep the system afloat. The health care reform act, in my opinion, doesn’t, if I might borrow an old cliché, “cut the mustard.”

Okay, I’m repeating myself again. But I’m only human. And I told you so.


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  1. Royal Martin Says:

    In the late 1970’s the malpractice crisis in California set into motion new tort reform that compelled any HMO enrollee to agree to “binding arbitration” prior to litigation, and this form of creative destruction in the legal community significantly reduced premium costs for HMO styled health plans which were in the process of flourishing in response to substantial increases in indemnity/PPO style health plans.

    However, while binding arbitration’s initial success reduced HMO premium costs by limiting the size and scope of malpractice awards, it did not impact indemnity/PPO plans, which, at that time began its slow extinction under employer sponsored group insurance primarily due to the cost of such coverage.
    In response to this shift in affordable health insurance plan alternatives, major indemnity/PPO insurance carriers began purchasing small local HMO carriers in order to provide both indemnity/PPO plans alongside HMO plans, as they realized that they had to provide both styles of health care packages in order to offset anti-selection inherent with the reduced enrollment in indemnity/PPO plans (primarily by the highest compensated individuals to and including the owners and executives of the employer) and thereby “spread the risk” between both types of health care delivery platforms in order to sustain their business model.
    While the rates for California HMO health plans, and in particular Southern California HMO health plans remain among the lowest priced nationally, we are now faced with substantial increasing costs in HMO care. This is evident even for the one remaining Staff Model HMO carrier, Kaiser, that has essentially priced its product above the cost of many competing IPA Model HMO carriers, and in particular those carriers that have further invented “micro-networks” as evidence by Healthnet’s Standard HMO, Silver HMO, Bronze HMO Network, and Salud HMO networks.
    Nonetheless, with the ever reduction in capitations from private as well as Medicare and Medicaid, the effect on the providers is and continues to be detrimental, causing many private practice providers into early retirement or into ACO’s as divined by PPACA’s mockery of micro-mandated cost-containment. Added to these forces are the facts that even with binding arbitration, a health care provider faces substantial economic penalties and ultimately may lose his or hers mal-practice insurance even with the reduced punitive/monetary penalty. As a consequence, the provider continues to practice “defensive medicine” in order to maintain his standard of living, his professional good name, and his patient base.
    Unfortunately, governments are motivated to maintain their control, and accordingly invent “rights’ that otherwise and heretofore have never existed, and in particular government has invented “the right to healthcare” in order to perpetuate its unholy and reciprocating grasp on the electorate.
    In fact, access to health care is a personal choice made by the individual. And while many will prefer to access health care, particularly if they do not have to pay for it, there is nothing in life that is inevitable other than “death and taxes”.
    Therefore, the individual makes a conscious choice to access health care based upon his or her ability to pay in consideration of his or hers desire to live well or ill. Thus, the ultimate failure of binding arbitration is that such an arrangement that limits the reward but not the loss of mal-practice insurance which results in the loss of the physician’s practice should be replaced to require the patient to “hold harmless” the health care provider to perform his or her healing arts without interference by legal inquisition. But alas, simplicity and honesty have long been replaced by envy and retribution.

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