Comments on: The High Cost of Practicing Medicine in the Northeast? http://www.thenewyorkmedicalmalpracticelawblog.com/2008/11/the-high-cost-of-practicing-medicine-in-the-northeast/ An overview of New York medical malpractice, products liability and personal injury law, and the news that affects it Wed, 08 Sep 2010 12:46:58 +0000 http://wordpress.org/?v=abc hourly 1 By: throckmorton http://www.thenewyorkmedicalmalpracticelawblog.com/2008/11/the-high-cost-of-practicing-medicine-in-the-northeast/comment-page-1/#comment-45 throckmorton Sat, 22 Nov 2008 03:10:22 +0000 http://www.thenewyorkmedicalmalpracticelawblog.com/?p=33#comment-45 I agree that caps are not the answer. There is malpractice and patients need to be compensated. The problem is that medicine is now being practiced according to a "legal standard of care". A patient presenting to the ER with a headache is a classic example. The patient has a classic migraine history and findings. If we use an "evidence based approach" we know that there is a 99.9% probability that this is indeed a migraine and we can treat appropriately. The "legal standard of care" is that there is a 0.01% chance that this patient may have another inracranial problem that is unrelated to this but can result in a lawsuit. So, instead of using the "evidence based standard" the ER doc will order a CT of the head. This adds additional cost to the patient and thus on to society in general, raising healthcare costs and diverting resources from areas where it is needed more. Unfortunately, "evidence based standards" do not hold up in court or in pretrial settlements. This is partially due to "expert witnesses" who will always say that an additional test should have been ordered. If we have a concerted effort to define what is the true "standard of care" and define this by "evidence based medicine" healthcare providers can order the appropriate tests as defined by the research as opposed to ordering the multitude of tests that are done for CYA. These evidence based guidelines already exist but to use them it is essential to define to what degree they need to be both sensitive and specific. Are tests and diagnosis that are 99% correct good enough? This means that 1% will still be misdiagnosed. At present 99% is not good enough because this means you can still be sued. So where do we set the bar? Here is another classic example. Mammograms are notoriously difficult to interpet, they do not have a good sensitivity or specificity. As a result, radiologists are routinely sued for missed diagnosis because the sensitivity goes up in hindsight with expert witesses who already know the diagnosis. Right now our radiologists recommend serial mamograms and then MRI and ultrasounds of the breasts routinely. How do we protect the radiologists and at the same time encourage them not to order unnecessary tests? So, what is the solution? I do not think that "witnesses for hire" are the answer, nor do I think that we need healthcourts. I do think that we need defined standards of care and have then based on true statistical evidence. We cant survive the "legal standard of 100% sensitive and 100% specific. These diagnostic care and treatment alogrithms can then be used as the guidelines of what is appropriate. When there is a deviation of guidelines, the Boards of the medical specialties should then be the "experts" to testify as to whether or not there has been a "true malpractice" event. I agree that caps are not the answer. There is malpractice and patients need to be compensated. The problem is that medicine is now being practiced according to a “legal standard of care”. A patient presenting to the ER with a headache is a classic example. The patient has a classic migraine history and findings. If we use an “evidence based approach” we know that there is a 99.9% probability that this is indeed a migraine and we can treat appropriately. The “legal standard of care” is that there is a 0.01% chance that this patient may have another inracranial problem that is unrelated to this but can result in a lawsuit. So, instead of using the “evidence based standard” the ER doc will order a CT of the head. This adds additional cost to the patient and thus on to society in general, raising healthcare costs and diverting resources from areas where it is needed more. Unfortunately, “evidence based standards” do not hold up in court or in pretrial settlements. This is partially due to “expert witnesses” who will always say that an additional test should have been ordered.

If we have a concerted effort to define what is the true “standard of care” and define this by “evidence based medicine” healthcare providers can order the appropriate tests as defined by the research as opposed to ordering the multitude of tests that are done for CYA.

These evidence based guidelines already exist but to use them it is essential to define to what degree they need to be both sensitive and specific. Are tests and diagnosis that are 99% correct good enough? This means that 1% will still be misdiagnosed. At present 99% is not good enough because this means you can still be sued. So where do we set the bar?

Here is another classic example. Mammograms are notoriously difficult to interpet, they do not have a good sensitivity or specificity. As a result, radiologists are routinely sued for missed diagnosis because the sensitivity goes up in hindsight with expert witesses who already know the diagnosis. Right now our radiologists recommend serial mamograms and then MRI and ultrasounds of the breasts routinely. How do we protect the radiologists and at the same time encourage them not to order unnecessary tests?

So, what is the solution? I do not think that “witnesses for hire” are the answer, nor do I think that we need healthcourts. I do think that we need defined standards of care and have then based on true statistical evidence. We cant survive the “legal standard of 100% sensitive and 100% specific. These diagnostic care and treatment alogrithms can then be used as the guidelines of what is appropriate. When there is a deviation of guidelines, the Boards of the medical specialties should then be the “experts” to testify as to whether or not there has been a “true malpractice” event.

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