Monday, March 29, 2010

Self Regulation and Tort Reform

John Yoo and Jay Bybee were the lawyers who provided the sham legal cover for the Bush/Cheney torture machine. The original draft of the Office of Professional Responsibility (OPR) report had determined that Yoo, Bybee, et al had committed grievous misconduct in their legal reasoning and advice and recommended that they be remanded to their state bar associations for possible discipline and/or disbarment. Of course, in the final version of the OPR report, Yoo and Bybee, although severely reprimanded by Associate Deputy Attorney General David Margolis, were ultimately cleared of providing "intentionally false arguments that they knew to be wrong". In the original OPR report, Yoo and Bybee were determined to have failed "to exercise independent legal judgment and to render thorough, objective, and candid legal advice." Apparently this basic standard of professionalism was deemed by Margolis to be too high a bar. Margolis instead argued that since Yoo was an ideologue who truly believed in what he was saying, then it wasn't his fault that the advice he gave was factually and legally false. Intention to harm is all that matters to Margolis. This is the low standard of professional conduct that an accused lawyer can always appeal to when his or her license is on the line. The blogging lawyer Jack Balkin has an excellent review of this fiasco here:
It's not about what people should do, but about how badly they have to screw things up before they are subject to professional sanctions.

Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.

This got my mind revving about medical malpractice reform. It's very clear that malpractice litigation, as currently constituted in this country, is harmful to doctors, patients, and the country's fiscal well being. Frivolous lawsuits lead to defensive medicine and all its attendant costs, in addition to creating an uneasy, antagonistic dynamic in the doctor/patient relationship. Patients who are harmed by bad doctors generally are not compensated for their injuries. (One study determined that only 2% of negligent adverse events occuring in a hospital resulted in a med mal claim.) It's a bad system. The only ones who seem to benefit are the plaintiffs attorneys and the defense lawyers for the big med mal insurance companies. It's a cash machine.

From the perspective of a practicing physician I would like to see reform take several iterations. I think these cases need to be tried in specialized "health courts", with the evidence weighed by independent panels comprised of physicians and lawyers and a judge familiar with medical standards. This way, you eliminate the wild west system of the "show" where hired gun physician expert witnesses argue that "obvious negligence" has occured while others argue the exact opposite. I think any potential malpractice litigation ought to be screened by an indepedent advisory board that would determine the validity of said claim. This would create a mechanism for weeding out those frivolous cases that a doctor has to address via his defense attorney in our current system. It would reward physicians who follow best evidence guidelines and shield them from the lottery system of a med mal trial. I'm also in favor of altering the evidenciary standard in medical malpractice cases from "preponderance of evidence" (which merely implies that malpractice was more likely than not to have occured) to one of "clear and convincing" evidence (a standard just below "beyond a reasonable doubt" in criminal cases.) I'm not so attached to the idea of capping damages. For one thing, caps only benefit insurance companies. Ask any doctor--- it doesn't matter if you're sued for a million bucks or $50,000, the mere fact of "being sued" alters one's future practice patterns rather than the gross dollar amount of the judgment. So I don't think capping the damages will have any appreciable effect on the scourge of defensive medicine. I do, however, like the idea of pre-determined awards that victims are slotted into based on the kind of injury sustained, victim age, and lost wages. This would all be calculated as part of the compensatory aspect of the verdict. The unlimited punitive damages phase of the verdict serves no purpose other than to line the pockets of the plaintiff's attorney.

Those are just a few ideas. I have a future post brewing that goes into more detail. But for now, those are my preliminary thoughts.

The point of this post is to correlate the Yoo/Bybee nonsense with med mal reform. As physicians, we have particular interests and goals with regards to medical malpractice reform. Overall, I think there is broad based support for what physicians desire. But we have to be reasonable about our entreaties. We have to approach the negotiating table in good faith. What can we do in return for arriving at some judicious accomodation? (You know, sort of like what the AMA ought to have been doing all last year instead of stridently, but vaguely, screaming about tort reform tort reform tort reform!)

Here's what we can offer: A renewed dedication to improving professional accountability. Via the state medical boards, medical societies, hospital QA committees, and intra-departmental morbidity and mortality meetings, we need to do a better job of holding those doctors accountable who fail to meet basic standards of care. Our ranks are infested with our own Yoos and Bybees. We need to police ourselves better. And not merely by using some statistical rubric devised by some hospital risk management executive. (Stats don't tell the whole story. Doctors who realize that they will be judged solely on outcomes will seek to eliminate those patients who are more likely to result in bad outcomes, i.e. the suburban hospital that shunts all redo CABG's to the main tertiary center, thus improving their "statistical superiority".) It needs to be done on a case by case basis. It will be labor intensive. Bureaucracies will need to be created. There will be errors and missed opportunities for intervention. But we need to do something. To serve as a practicing physician is a privilege, not a god given right, no matter how many diplomas you have hanging from your wall. You have to re-earn it every single day, with every new patient who walks through your door.

To lose your medical license, or even to be suspended or face disciplinary measures for failing to meet the bare minimum standards of care happens far too rarely in this country. You basically have to show up drunk or drug addled, repeatedly, or to have so many complications that the local newspaper does a story on you and your injured patients in the metro section for there to be any consequences. The bar is set too low, in other words. Denial doesn't help matters (ask the Vatican right now). We need to subject ourselves to a higher standard than what we've held our members heretofore. The surgeon who has four bile leaks in a year maybe needs to have another board certified surgeon watch his technique for his next ten cases. The internist whose diabetic patients develop an inordinately high rate of foot ulcers and have elevated hemoglobin A1c levels perhaps ought to be forced to enroll in some didactic session or a CME course on proper diabetic management.

I don't have the exact plan for how all this is to be enacted. I'll leave that to the AMA, hospital QA committees, and perhaps even federal oversight to determine how we self-regulate ourselves. But the point is that we have to make a move toward greater transparency and better quality assurance. This is the price of any meaningful tort reform. The standards we as physicians hold ourselves to have to be higher than the low bar set by trial lawyers, right?


Anonymous said...

Great Post Buckeye,
Umm you do know that under the current regime Medical Malpractice Reform is about as likely as a Dick Chaney appointment to the Supreme Court...
as likely as the Browns having a winning season,
as Al Gore flying coach to Cannes this summer...
and to prove I read your whole post...
How are Internists supposed to keep their patients HbA1Cs low??
Sneak into there bedrooms at 3am and stick em with some NPH????
It'd be like makin you responsible for preventing gallstones...


#1 Dinosaur said...

Right with you, up until the very end. Although I have no idea whether bile leaks always represent technical failures on the part of the surgeon, I can tell you that complications and elevated A1c's in diabetics are almost always a function of patient compliance (well, lack thereof), and not really an indication of an internist's abilities. The kind of plan you suggest will lead to lots of diabetics being referred from internists back to the family docs, both to make the internists' numbers look better (and collecting P4P bonuses), and because the FPs have a harder time dumping patients who just can't seem to stick to that diet (and lower incomes from time away from the office in mandatory "didactic sessions" on diabetes management). (More here.)

Other than that, I agree completely.

Anonymous said...

At one time I thought health courts were a good idea. But I'm no longer sure whether we need to spawn another bureaucracy. In its own way, it could end up being almost as adversarial and process-ridden as the system we have now.

Apparently the health care reform bill contains some grant money for demonstration projects aimed at patient safety, development of alternative dispute resolution models and so forth.

My question is: Do we really need to "try" cases in which a patient has been harmed by their care? Or should the goal be to resolve these cases, be truthful with patients about what happened to them, compensate them fairly and not subject families and clinicians to months of anguish. If the physician really screwed up, that would then of course be an issue for the licensing authority, the credentialer or whomever, but this could be separate from the actual mediation with the patient/family.

BTW, there appears to be nothing in the health care reform bill that precludes states from enacting their own tort reform. My sense with tort reform, however, is that we're flogging a dead horse and that we might be better off trying a whole new approach.

Michael Kirsch, M.D. said...

Yoo and Bybee, legal scholars, are demonized as symbols of the perceived excesses of the Bush administration. Interestingly, the Obama administration has continued nearly all of the national security programs that President Bush implemented. Indeed, the WH was dismayed when a Federal judge last week ruled against our current eavesdropping without a warrant policy. Candidate Obama suggested that we needed to significantly recalibrate the balance back toward civil liberties. President Obama wisely reconsidered. Closing Gitmo is not quite as easy as it seemed during the campaign. We can only imagine the dire and threatening contents of his daily security briefing. The stakes couldn't be higher and the president, like his predecessor, wants every available tool. This is not an academic debate in a law school seminar. This is a life or death issue. While I'm not qualified to opine on Yoo and Bybee's conduct, I would suggest caution before tarring them as villains. Nice post.

Jeffrey Parks MD FACS said...

Tarring as villains? Please read the OPR report. The original report recommended that they be DISBARRED for egregious dereliction of legal duty. I'm just a messenger here. Their conduct was

And youre not correct about the Obama White House vis a vis the Bush war on terror policies. We no longer torture. We don't send suspected terrorists to secret Egyptian prisons. We grant habeas corpus to foreign nationals seized on foreign lands. Gitmo is still open and that's a blight on Obama's record. I have no doubt that there are bad people down there. And there are also innocent people down there (an unquestionable fact). But once youve tortured them and held them without counsel or appeal for 7-10 years, what exactly do you DO with them all? You can't convict them of anything in a court of law; all evidence obtained under such circumstances would be thrown out. Transferring them to American military stockades would set off a Tea Party firestorm (Dont bring those terrorists into my backyard!) Once again, a legacy of the Bush years.

I don't doubt that the threats described in the President's daily intelligence briefing would scare the daylights out of most of us. Nevertheless, I don't accept unlimited executive power. That's not the way this country was structured. The rule of law applies equally to common citizens and elected officials alike. It's easy enough to cede powers of torture, rendition, and warrantless wiretapping to Big Brother when the targets are scary, bearded Muslims who live half way around the world. But power gained is not so easily relinquished. Someday, pain in the ass bloggers like you and I might become a target of a "federal investigation" and subject to enhanced interrogation techniques...

Michael Kirsch, M.D. said...

Thanks for the response. I disagree with you that President Obama has migrated to any significant degree from President Bush’s nat’l security policy. Indeed, this is one of the explanations for the political left’s consternation with him. (Dropping cap and trade, losing the public option, backflipping on proceeding with criminal trials in NYC against KSM and a few of his henchmen and his new announcement about off shore drilling are a few others.) I believe that Obama made some rhetorical expressions of strengthenging civil liberties and following the rule of law, but I don’t believe has desired or implemented changes on the ground. The best example is that his government has continued the same policy of eavesdropping that was present under Bush. Why didn’t Obama simply disband this after he took office? He didn’t because the security folks told him not to and he had the wisdom to change his mind. Gitmo is another tough example. It’s easy to demand it’s closure, but what do you do with the detainees? We sent a few to Palau, and some to other countries and release a few, but we’re stuck with about 100. I agree that there may be some innocents there, but most are likely hard core terrorists that no country will accept. What do you do when the interrogators and lawyer tell the president that there is not enough admissible evidence to convict in any judicial proceeding, but that they are dangerous fanatics that will murder more people if they are released?

I understand your points, but we are no longer debating civil rights, such as was the policman’s search of his care permissible? The stakes are so high, and the enemy is so intent on mass murder of innocents, that we need to relax some of our rules to survive. Keep in mind that the enemy has no rules to answer to. If fact, they seek protection under our rights to further their evil designs.

As for world class bloggers like us, I’m okay with the government peeking at my e-mails, if this technique is deemed necessary to prevent an airplane from exploding.


Anonymous said...

i imagine what we will actually get instead is some bloated bureaucracy to police docs which somehow missed the point entirely and winds up just seeking to justify its own continued existence, and no meaningful reform of the med mal system to go with it.