Obsidian Wings

Medical Malpractice and the Courts

--by Sebastian

Useful data on medical malpractice costs in the court system is notoriously difficult to come by.  Much of the time the researchers totally ignore defense costs--which leaves an analysis of 'payouts' woefully inadequate because it assumes that a suit which doesn't lead to a payout doesn't have a cost to the doctor.  Other analyses leave you wondering if the costs are paying people who are injured or just anyone who sues.  The Harvard School of Public Health has just put out an interesting study which attempts to address some of these problems.  I am working off their direct press release (I'm not dedicated enough to spend $100 subscribing to the NEJM but if anyone finds more of the direct data please let me know) and while your mileage may vary about the conclusions offered with the data, the data itself is worth talking about. 

The factual findings are as follows:

The authors reviewed 1,452 closed claims from five malpractice insurance companies across the country. They focused on four clinical categories: surgery, obstetrics, medication and missed or delayed diagnosis, areas that collectively account for about 80% of all malpractice claims filed in the U.S. Specialist physicians in each of these clinical areas reviewed the claims and the associated medical records to determine whether the plaintiff had sustained an injury from care. If an injury had occurred, the physicians judged how likely it was to have been due to medical error.

The reviewers found that almost all of the claims involved a treatment-related injury. More than 90% involved a physical injury, which was generally severe (80% resulted in significant or major disability and 26% resulted in death). The reviewers judged that 63% of the injuries were due to error. The remaining 37% lacked evidence of error, although some were close calls.

Most claims (72%) that did not involve error did not receive compensation. When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560). Among claims that involved error, 73% received compensation. “Overall, the malpractice system appears to be getting it right about three quarters of the time,” said Studdert. “That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.” The 27% of cases with outcomes that didn’t match their merit included claims that went unpaid even though the injury was caused by an error (16%); claims that were paid but did not involve error (10%); and claims that were paid but did not appear to involve a treatment-related injury (0.4%).

However, the study did not paint a uniformly positive picture of the current malpractice system. [--ed. That is uniformly positive?] The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs’ lawyers, averaged $52,521 per claim. Overall, these administrative costs amounted to 54% of the compensation paid to plaintiffs. “Deciding negligence is a very expensive process,” said Studdert. The authors also found that it took an average of five years from injury to resolution of the claim—a long time for plaintiffs to wait for compensation and for defendants to endure the uncertainty that litigation entails.

Finally, the authors found that the claims that did not involve errors absorbed a relatively small piece of the costs of compensation. Eliminating those claims would decrease the system’s compensation and administrative costs by no more than 13% to 16%. “Many of the current tort reform initiatives, such as caps on noneconomic damages, are motivated by a perception that ‘jackpot’ awards in frivolous suits are draining the system,” explained Michelle Mello, an associate professor of health policy and law at HSPH and a co-author of the study. “But nearly 80% of the administrative costs of the malpractice system are tied to resolving claims that have merit. Finding ways to streamline the lengthy and costly processing of meritorious claims should be in the bullseye of reform efforts.”

I was struck by the following: 

37% lacked evidence of error.  I don't really understand what they mean by "some were close calls" when you use such strong language as "lacked evidence of error".  It may be clearer in the underlying paper, but I'm taking it to mean that when the case was looked at by medical professionals it definitely was not malpractice. 

If I were a doctor I wouldn't be thrilled that almost 40% of cases brought lacked evidence of error. 

Of the claims that did not involve error, 28%  were forced to pay compensation anyway.  That compensation averaged $313,205.

If I were a doctor I wouldn't be thrilled that almost 10% (0.37*0.28) of all malpractice cases were both without error and involved paying compensation averaging $313,205.  That provides an average expected cost per case (in compensation to the plaintiff) for doctors who did not commit an error of $87,697. 

The report states that 72% of claims without error did not receive compensation.  Since defense costs are not zero on such cases, it is clear that they are not taking defense costs into consideration in "compensation". 

" The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs’ lawyers, averaged $52,521 per claim. Overall, these administrative costs amounted to 54% of the compensation paid to plaintiffs. "

This is a deeply odd statistic as presented.  Under normal legal accounting, the "contingency fees paid to plaintiffs' lawyers" piece would be a subset of "compensation paid to plaintiff".  Here they are treating it as if it isn't part of that.  I can't make that jibe with other statistics.  Contigency fees before trial are rarely below 20% and if the case goes to trial they tend toward 30%.  Assuming no case went to trial the average contingency fee for the cases where there was other than "no evidence of error" would be ($521,560*0.2) $112,712.  The average contingency fee for cases with no evidence of error would be ($313,205*0.2*0.28) $17,539.  [The 0.28 term represents the fact that only 28% of the no error cases received compensation].  Therefore the average contingency fee per case should be (112,712*.63+17,539*.37) $77,498.  This is greater than the reported average administration cost and we haven't even added in defense costs yet.  So as I say, the statistic as reported does not make sense to me.  [If anyone gets better access to the underlying statistics please let me know].  As such I am reluctant to rely on the statistics which are derived in their costs section. 

Defense costs are clearly not zero even in the lack of error cases.  But even without them the average expected payout for non-error cases (which is incidentally how an insurance company looks at the question) is more than $80,000 per case.  That doesn't strike me as a great outcome. 

Now just because there is a problem doesn't mean that there is a governmental remedy to the problem or that the commonly proposed solution really is a remedy to the problem.  The economic cap proposals which are most regularly touted as tort reform do not particularly address the problem of being forced to defend and pay out on cases where no medical error took place.  I suspect a large part of the problem lies not with the plaintiff's attorney, but rather with a judge who fails to quickly dispense of a frivolous case or fails to finally dismiss a case if at the end the evidence reveals that there was no error.  It may be that the costs in collecting all the right evidence cannot be easily avoided.  But when that process comes to an end, a judge should be willing to dismiss.  In practice it seems to me that judges are reluctant to dismiss cases even when the evidence is clear.  I suspect the answer is to give judges some incentive to dismiss cases or some mechanism to make it easier to dismiss cases when the scientific evidence is clear.  But I can't off-hand think of a great way to do that without endangering the plaintiff's cases where there is evidence of error.  I wonder of some sort of third-party screening system could be used instead of the battle of bought malpractice experts which currently dominate the court system.  Anyway, food for thought. 

Further interesting questions that weren't addressed:

When there is "evidence of error" was it tracked beyond a mere threshold level?  It might be interesting to divide such cases into broad categories like "minimal evidence of error mitigated by substantial evidence of non-error" "substantial evidence in both directions" and "substantial evidence of error".  My intuition is that the last two categories would have significantly higher pay-outs than the first, while the first  two would be the largest percentage of the cases.  This intuition is somewhat tempered by the highish number of non-error cases which nevertheless seem to get a substantial payout. 

In the non-error cases what does the breakdown look like per injury type?  Are medical outcomes resulting in death more likely to cause payouts in non-error cases than other types?  If so does this represent an illegitimate emotional factor among juries that might be remedied somehow? 

In error cases that do not recieve compensation, what is the injury profile like? 

How do defense costs play out over the course of the case?  Could we minimize costs by emphasizing or streamlining certain segments in the life of a lawsuit? 

UPDATE--

I have received a copy of the underlying study.  I haven't comprehensively analyzed it (more to come), but I checked out the administrative expenditures because they are A) easy to analyze and B) made absolutely no sense to me as reported in the press release. 

The press release appears to conflict with the underlying report as to:

The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs’ lawyers, averaged $52,521 per claim. Overall, these administrative costs amounted to 54% of the compensation paid to plaintiffs.

This statement made no sense to me because I couldn't imagine that average defense costs were much lower on average than $40,000 (as would be strongly implied if defense plus plaintiff costs averaged $52,000) and given the other numbers $52,000 per claim can't amount to 54% of the compensation paid to the plaintiffs.

Table 3 (page 2031) Entitled "Apportionment of Total Expenditures between Claims Involving Error and Those Not Involving Error" shows 1441 claims with $72,617,594 allocated to defense costs and $131,765,574 allocated to plaintiff's costs.  This gives a rough average defense cost per case of $50,393.  This is much more in line with what I would expect. 

The GOP's Parade Of Horribles

by hilzoy

This week, the Senate is taking up not one but two completely idiotic issues. Von has already commented on the first: a constitutional amendment banning gay marriage. I watched some of the debate on this while eating a late lunch, and it was surreal: endless talk about the importance of marriage, which supporters of gay marriage fully concede, and virtually nothing about what, exactly, writing a ban on gay marriage into the Constitution is supposed to do to strengthen it. Sam Brownback did say that if we start changing the laws of marriage, we will send the message that marriage can be whatever we want it to be. Curiously, I do not recall conservatives making this argument when other changes to marriage laws were made -- for instance, when some states introduced covenant marriage. And I heard someone on NPR arguing that marriage is primarily designed to benefit children, and thus should be reserved for heterosexual couples. Why this line of argument wouldn't support legalizing marriage for gays who plan to have or adopt children while banning it for heterosexual couples who don't, as well as for infertile and elderly couples, is a mystery.

I have my own ideas about how to strengthen marriage. While there are some couples whose strength and virtue would allow them to survive whatever life threw at them, many marriages that might flourish given a normal dose of life's vicissitudes break apart when they encounter serious and unforeseen strains. Some of these strains -- e.g., those produced by one spouse's persistent infidelity -- have nothing to do with public policy. Others, however, could be greatly mitigated by government action.

For instance: the husband of one of the people who used to clean my house (before I moved) was recently in an accident that left him needing a long series of operations to reconstruct his legs. Both he and his wife had medical coverage through his job; however, his job requires that he be able to use his legs, and so the day of his accident was also the day on which he lost his job, and thus his (and his wife's) medical coverage. After an enormous amount of effort, they qualified for a medical assistance program here in Maryland; but they accumulated a lot of medical debt before they were accepted by it, for which they remain liable. They are presently surviving on her earnings and help from their families, who can't really afford it but are helping out anyways. But the debt is an enormous, and unresolved problem.

She quit working as a maid shortly before I moved, to take a job shelving things at a large chain store. It pays less, but it doesn't require her to drive around while paying for her own gas, and moreover, it will allow her to work nights, so that she can take care of her husband during the day. When exactly she plans to sleep is a mystery.

As best I can tell, their marriage is fine. (I haven't inquired too closely, though, not wishing to pry.) But, obviously, they are not the only couple to have serious and unforeseen medical problems that get them into real financial trouble. And equally obviously, real financial trouble is exactly the sort of strain that can break a marriage apart. So I have a modest proposal: let's christen our next attempt to provide health insurance for everyone the Defense of Marriage Act and see if we can get cultural conservatives to sign on. Universal health insurance would save more marriages than any number of mean-spirited attempts to prevent loving couples from getting married, let alone writing bigotry into the Constitution. And after watching GOP strategists expect them to leap up like Pavlov's dogs at the mere mention of gay marriage, cultural conservatives just might be open to other possibilities.

As if this weren't enough, the Senate plans to move on to consider making the repeal of the estate tax permanent. This is a staggeringly bad idea. It would cost the treasury a trillion dollars in its first decade. At a time when we are cutting back on veterans' benefits, children's health care, and all sorts of other things for the sake of deficit reduction, this is something we cannot afford, especially since the children of the wealthy are the last people on earth who need help. The last time I wrote about this, I explained why I think this:

"If we have to cut taxes on someone, trust fund babies are the last people in the world we should cut taxes on. I know whereof I speak, since I am one of the relatively small number of people in this country who would actually benefit from the repeal of the estate tax. I have already been extremely lucky. Financial worries never cast their shadow over my childhood. I never had to listen to my parents argue about money, or wonder why they seemed so worried all the time. I was in junior high before I realized that most people didn't get jobs in order to make a contribution to the world. When I was a kid, we went to all sorts of interesting places -- I particularly liked the summers in Sweden and France. I got a truly great education, as a result of which I have been able to land on my feet and do well in pretty much any environment I've ever found myself in. Moreover, at the end of it, I was not in debt, so I could take any job I wanted without having to worry about paying off my college loans. Likewise, when I decided to buy my first house, I did not have to save up for the down payment. And on, and on.

Now: I do not feel guilty about this. I didn't deserve any of it -- how could I possibly deserve being born into my family? -- but I don't feel that I should have been less lucky; only that it would be great if other people could have as wonderful a childhood and education as I did. What I do think is this: that the idea that we should send our country into debt, and mortgage our children's future, to give more money to the likes of me is morally grotesque. I have already had every advantage I could possibly ask for. Things have already been stacked heavily in my favor. Partly as a result, I am doing just fine. And I am, therefore, just about the last person we should be going into debt to give more money to."

If I recall correctly, in the comments to that post, someone asked why the government had any business taking any part of my parents' estate. The answer is pretty obvious: the government has to be funded somehow. We could fund it by taxing income, or wealth, or the purchase of toothpicks, or any number of things, but we have to fund it somehow. To my mind, estates are one of the best things to tax. Taxing inheritances does not discourage people from working or investing or doing anything else that needs encouragement. Its main social consequences are promoting charitable giving and reducing inequality of wealth, both of which are good. No one deserves to inherit large sums of money: I, for instance, do not owe my wonderful parents to my own hard work, my personal merit, or anything other than sheer blind luck. As I noted above, most people who are in a position to benefit from the estate tax have already benefitted enormously by being the children of wealthy parents; in the case of those who have not benefitted from this, presumably lack of money is not the problem. For all of these reasons, I would favor a much higher marginal tax rate -- say, 80% -- on estates above $3.5 million. Repealing the estate tax, at a time when we allegedly cannot afford to provide health insurance to the working poor, to reconstitute the Louisiana wetlands, or to pay for body armor for troops in combat, would be obscene.

I can't imagine what new horrors next week's Senate calendar will bring. A Constitutional ban on bestiality and necrophilia? War with France? Making the mere mention of either of Janet Jackson's breasts a felony? With today's Republican leadership, there's just no telling what the future has in store for us.

And so ...

by von

AND SO we come to the payoff:  A transparent two-faced tirade on gay marriage, fooling no-one and annoying everyone.  As The Sully says, when you lose LaShawn Barber, the gig is up.  (Though it must be noted that Ms. Barber was against the Amendment before being against the Amendment was cool.  That canary had sung.)

Long-time readers of this blog will know that I oppose a Constitutional Amendment banning gay marriage on virtually every conceivable ground.  It's a waste of time; it's none of the fed gommit's business anyway; it's better to let the states decide; DOMA is already in place to keep them thar "activist judges" from taking their road show to a state near you; etc.  I also happen to think that gay folks should have the same opportunity to get married as anyone else, and can't quite figure out how my marriage is demeaned by lettin' them do so.  Long-time readers of this blog will also recognize that I've been on the outs with my putative allies for a very long time -- hell, probably since '00, when McCain was nixed in South Carolina -- and so much so that I was initially pegged as a standard lefty, for Godssake, when I first started commenting on the old Tacitus.org site.  (Liberal in the classic sense, maybe.  Lefty?  Friend, I get the heebie-jeebies at the world socialist, and the only folk I despise more than Patrick Swayze is commie folk.  Say it with me: Wolverines!)

So there is more than a bit of schadenfreude in watching the pagentry of an utterly failed attempt to pander.  We take our joy where we get it.  The natavist wing of party, in cahoots with opportunists in  Big Labor, are gonna kill real immigration reform.  Remember '86, they shout!  Enforcement first!  Well, y'know, if all these tough talkers back in '86 had actually spent the funds to back up their mean-ole-words, we wouldn't be in the place that we are now.  What makes you think that this version of the tough-talkers -- the Pences and Tancredos and Malkins -- is any better?  Has anyone pledged to spend a dime on enforcing the laws we have?  No, they want brand new laws not to enforce.  And so it goes. 

Meanwhile, the self-proclaimed defenders of freedom fixate on the fact that Barry McCaffery said something positive about Iraq.  Yippee!  Of course it's wonderful that progress is being made, that the army is acting more army-like and the police more police-like.  Of course we've been amazingly casualty-free given the nature and length of the war.  But one doesn't win a war by not losing.  Moreover, the numbers are not trending well and the view from the ground continues to depress:

Baghdadis are reporting that radical Islamists have taken control over the Dora, Amiriya and Ghazaliya districts of Baghdad, where they operate in broad daylight. They have near full control of Saidiya, Jihad, Jami’a, Khadhraa’ and Adil. And their area of influence has spread over the last few weeks to Mansour, Yarmouk, Harthiya, and very recently, to Adhamiya.

....

People who live in the mentioned districts claim that unknown groups have distributed leaflets (often handwritten), warning residents of several practices, ranging from instructions on dress codes to the prohibition of selling or dealing with certain goods.

The instructions vary between neighbourhoods. Amiriya and Ghazaliya have the full menu, while others stress only 2 or more of them. So far, enforcing the hijab for women and a ban on shorts for men are consistent in most districts of western Baghdad. In other areas, women are not allowed to drive, to go out without a chaperone, and to use cell phones in public; men are not allowed to dress in jeans, shave their beards, wear goatees, put styling hair gel, or to wear necklaces; it is forbidden to sell ice, to sell cigarettes at street stands, to sell Iranian merchandise, to sell newspapers, and to sell ring tones, CDs, and DVDs. Butchers are not allowed to slaughter during certain religious anniversaries. Municipality workers will be killed if they try to collect garbage from certain areas. .... 

Natch, the continued presence of Rumsfeld -- a failed Defense Secretary, who would have been run out of any administration that half-cared about winning the war -- is not encouraging for those of us interested in a turnaround.  More troops, more money, fight to win?  Let's just find a nice reason to withdraw.   

It bears remembering that "we're winning" the war on terror only until the next strike.  Indeed, one might call such complacency "pre-9/11 thinking."

But on to happier things.  It's a beautiful day outside.  Time to enjoy it.

Good Move

by hilzoy

From the Boston Globe:

"The board of governors of the American Bar Association voted unanimously yesterday to investigate whether President Bush has exceeded his constitutional authority in reserving the right to ignore more than 750 laws that have been enacted since he took office.

Meeting in New Orleans, the board of governors for the world's largest association of legal professionals approved the creation of an all-star legal panel with a number of members from both political parties.

They include a former federal appeals court chief judge, a former FBI director, and several prominent scholars -- to evaluate Bush's assertions that he has the power to ignore laws that conflict with his interpretation of the Constitution.

Bush has appended statements to new laws when he signs them, noting which provisions he believes interfere with his powers.

Among the laws Bush has challenged are the ban on torturing detainees, oversight provisions in the USA Patriot Act, and "whistle-blower" protections for federal employees. The challenges also have included safeguards against political interference in taxpayer-funded research.

Bush has challenged more laws than all previous presidents combined."

I was hoping to provide a complete list of the panel's members, but the ABA doesn't have one on its website. From the Globe article, however, it seems as though there are, if anything, more (or: more prominent) Republicans and/or Republican appointees than there are Democrats and/or Democratic appointees.

I think that this is a very good idea if it's done right (which means: if the panel is not partisan, and if its members are lawyers of real distinction.) The normal way of deciding whether something is constitutional is, of course, for the courts to rule on it. This has two drawbacks, however: first, it takes time for a case to work its way through all its various appeals, and second, in order to have a case at all, someone has to have standing to bring it, and in some cases it can be hard to find someone who knows that he or she has been harmed by the President's use of the powers he claims under his signing statements. Both of these problems are necessary evils in our current legal system, and it's appropriate that the judicial system, which exists not to provide general guidance but to assign binding penalties and obligations, works this way. However, if you just want some guidance in deciding whether or not the President can constitutionally claim certain powers, a non-binding and non-partisan panel of experts is an extremely useful supplement. ("Non-partisan" means that the panel should be composed of people who are open-minded and reasonable, not of people whose opinions can be predicted on the basis of partisan politics. It does not mean that the panel should not feel free to decide that the facts and the law decisively favor one side.)

The President has asserted the right to extraordinary powers, including the power to disregard laws he thinks impinge on his authority, and to do so not by challenging those laws in court, where his interpretation of the Constitution and the powers it gives him can be openly assessed, but simply on his say-so. I believe that while it is his right to say whatever he wants when signing a bill, it is not his right actually to violate any existing law. If he thinks a law is unconstitutional, he can veto it, or challenge it in court. Otherwise, he should obey it. However, I am aware that I am not a lawyer or a Constitutional scholar. I could easily be wrong on this or any other point of legal interpretation. I therefore welcome the creation of a panel of experts to weigh in on this question. Good for the ABA for stepping up to the plate.

Aaargh! With Musical Accompaniment

by hilzoy

Now I remember why I hate to move. All those boxes. All that cleaning. (The thought that this is the only time I will ever be able to clean behind the bookcases without its being a major production is a spur to effort. A pity it's true of the entire house at once, rather than, say, a room per month.) All those things to remember to do. And, joy of joys, I am also getting my other house ready to go on the market, which also involves enormous amounts of cleaning and organizing and stuff. I am beginning to doubt that it will ever be done.

I'm posting this partly in response to requests in comments, and partly in order to separate coming up with a new post from thinking a substantive thought (which it seems, just now, that I might never do again.) So it's an open thread. Here's a question prompted by comments, though: do you have a favorite instrument? If so, which is it? I am devoted to the guitar because I play it, but for listening, I really love the oboe, because of the tone and its possibilities, which I think are summed up by (on the one hand) its part in Bach's cantata 140, and (on the other) the cat part in Peter and the Wolf. The cello too: there's something about the low rich tone of it, and the way it manages to be both sonorous and warm, that I think is glorious.

Note to rilkefan: in considering which instrument to teach the rilkekind, consider that different instruments require different amounts of time and effort before one reaches a barely tolerable level of proficiency -- where 'barely tolerable' is meant literally: no longer unendurable to the player and the listener. The guitar requires very little, provided one has any sort of sense of rhythm at all. (Strumming is easy.) It also has lots of room to improve from that point, so it's not boring. The violin, by contrast, requires years before one produces anything better than squeals and shrieks. Speaking as the sister of a violinist, the first few years are hell, though now it's great. I imagine they might tax the patience of a small child; they would surely tax yours.

(I don't mean to recommend the guitar as an instrument to teach one's kids. It was great for me, since I seem to have some sort of learning disability when it comes to reading music -- I can't get beyond a Sesame Street-like point, at which I have to spell out each note individually (c...a...t...cat!), to a point at which I can read whole phrases fluently. Thus, an instrument that can be played without reading music (unless one does classical) was ideal. For almost everyone else, I think that an instrument that does require reading music would be better. I just used the guitar to illustrate the general point about learning an instrument with a short time-to-tolerability, since it's the example I know best.)