Archives: September 2014

September 2014 Newsletter

Protect Patients Now Volume 9, Issue 9 September 2014 Newsletter E-Newsletter Special points of interest: Defensive Medicine Becoming the Rule Rather than the Exception Editorial Review: Major California Newspapers Oppose Misdirected Liability Ballot Measure Texas Supreme Court Continues to Validate State’s Liability Laws Defensive Medicine Becoming the Rule Rather than the Exception With meritless lawsuits on the minds of physicians and health care providers, care that is defensive in nature is becoming more commonplace in the exam room in hopes that it will keep physicians out of the court room. A new survey of physicians at several hospitals in one Massachusetts health system, summarized in a recent edition of JAMA Internal Medicine, shows that a third of the orders that the surveyed physicians placed were defensive on some level. The study found 28 percent of orders and 13 percent of costs were at least partially defensive across all of the care provided at three institutions within one health system. About 2.9 percent of costs were considered to be solely defensive in nature. “Fear of frivolous lawsuits may be so pervasive that it has changed what is considered an acceptable diagnostic approach,” said Dr. Michael Rothberg, vice chair for research in the Medicine…

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Doctors order unnecessary tests without even realizing it

Physicians order unnecessary tests and procedures to inoculate themselves from legal liability more than they realize, according to a new survey of physicians at several hospitals in one Massachusetts health system. Nearly a third of the orders that the surveyed physicians placed were defensive on some level. The researchers argue that clear communication about evidence-based guidelines and tort reform that would protect clinicians when they follow those guidelines would help reduce providers’ fear and improve patient care. Fear of frivolous lawsuits may be so pervasive that it has changed what is considered an acceptable diagnostic approach, said Dr. Michael Rothberg, vice chair for research in the Medicine Institute of the Cleveland Clinic and lead author of a summary of the findings published in JAMA Internal Medicine. “Some people might say it’s defensive, and other people might think it’s the standard of care,” Rothberg said. “There’s really more of a culture about how people treat a particular problem, and many may not recognize it as being defensive.” The study found 28% of orders and 13% of costs were judged to be at least partially defensive among the hospital medicine services at three institutions within one Massachusetts health system. About 2.9% of…

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Poorly Crafted State Proposition 46 Puts Doctors on Defense

The lawyers who put together and funded Proposition 46 might have been too clever for their own good. The main motivation for the measure is inescapably clear: to raise the ceiling on “noneconomic damages” in medical malpractice lawsuits — in plain language, “pain and suffering” — from $250,000 to $1.1 million. That cap was set in 1975, and has not been adjusted for inflation. A very credible case could be made that it’s now so low that it makes it difficult for certain victims to seek redress in court. But this measure overreached in a decidedly cynical way. Its proponents have openly admitted that the provision for random alcohol and drug testing of doctors was added as a political sweetener. Voters should not be fooled by the title and summary put together by Attorney General Kamala Harris’ office that focuses on the testing as if it were the centerpiece of the measure. It is not. (Harris has been a less-than-stellar steward of ballot titles and summaries throughout her term, often skewing them with loaded language for political effect. Her descriptions of everything from pension reforms to tax increases have been so egregiously unfair that they raise the question of whether…

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Proposition 46 is No Cure-All

Physicians should not get drunk or stoned, especially before operating on patients. They ought to make sure their patients need prescriptions for ailments, not to feed addictions. And policymakers should consider updating the 1975 law that capped damages in medical malpractice cases. But the cure to all of the above is not Proposition 46, an initiative on the Nov. 4 ballot that would disrupt health care in California, and has reignited the war between physicians and plaintiffs’ lawyers. Consumer Watchdog and allies including plaintiffs’ lawyers have raised less than $5 million to support Proposition 46. Physicians and their allies, including medical malpractice insurance companies, have amassed $55 million to kill it. Aware that some voters distrust lawyers, Consumer Watchdog added sweeteners to the initiative to obscure the initiative’s main point, that being to open the way for bigger awards in medical malpractice lawsuits. One enticement would require drug testing of doctors, which evidently polls well. In our view, however, the cynicism implicit in the drug testing provision is reason enough to oppose Proposition 46. If doctors are drug-addled, other doctors and nurses have a duty to report them. If doctors make horrible mistakes during surgery, there might be cause for…

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Vote No on Proposition 46

Supporters of Proposition 46 on the Nov. 4 ballot must think the California voter is really stupid. Proposition 46 is a measure put on the ballot by trial lawyers who want to raise the limit on noneconomic damages in malpractice cases. But the proponents must have found out that the measure didn’t poll well, so they added two other unrelated matters to it in a strategy so obvious that it’s almost laughable. We certainly understand why they would want to raise the limit on the so-called “pain and suffering” designation, even if we don’t agree. The limit of $250,000 was established back in 1975 with the approval of then-and-now Gov. Jerry Brown. Proponents of the measure say that the cap should be adjusted for inflation, which would move it up to $1.1 million. But nonpartisan studies have shown that such a move up would have a damaging impact on already high health care costs. That’s why every attempt to raise the limit has gone nowhere in the state Legislature. So proponents figured, why not dress it up with two other proposals and present the entire package to the voter? Maybe then, they reason, we can sneak through the higher malpractice…

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