Dr. Eric Novack: Emotions, not facts, drive the medical liability system

In previous postings I have laid out the goals of a medical liability system and some information on the philosophical underpinnings of torts in the United States. I make these observations from the point of view of a “non-lawyer” who believes that law, like medicine, is based upon fundamental concepts upon which future understanding and interpretation is based.

This is important because the supporters of the trial bar generally respond to any discussion of tort reform with indignation. Indignation that changes to the system would certainly deny some fundamental rights to possibly injured parties; indignation that the problem is not too many lawsuits in healthcare, but rather too few; indignation that undeniable facts related to medical liability--spiraling costs for physicians, reduced access for patients--can be exposed when their selective and creative use of statistics is exposed.

The current system is one of emotion and not one related to facts. What matters is the severity of the problem--not the actual negligence of the doctor. To be certain, medical errors occur and doctors and hospitals have been late in many cases to join the fight for improved safety.

The Institute of Medicine published the oft-quoted study “To Err is Human” in 1999. In this report, they claim that 98,000 Americans die each year because of medical errors. At least that what those who report the findings would lead you to believe. The 98,000 figure is based on a selected review of charts from 1984. This was then extrapolated to the 98,000 figure. A look at statistics from 1992 were also examined and extrapolated in the IOM study and 44,000 preventable deaths were claimed.

Looking deeper into the numbers you see that the extrapolation to the huge numbers quoted and described is likely fantasy—an equally inaccurate look at this data would be to say that US healthcare reduced preventable deaths due to error by 54,000 over a decade—but that was not the agenda of the authors.

Also, the data, when examined, showed that expert chart reviewers rarely agreed on which errors occurred, if at all. This is worth explaining in slightly greater detail with a simplified example. Say that 100 patient deaths are examined by 10 different reviewers. If the reviewers all said 20 patients died of preventable errors it would seem that 1/5 or 20% of the deaths were preventable.  But not so fast….

In the IOM report, the study reviewers rarely chose the SAME patients. In the example above, the ten reviewers each came up with 20 patients, but a different twenty.

Obviously, the validity of the conclusions is very suspect when you look at the actual data—and the conclusions of the IOM become suspect as well.

It is as if the IOM said, “medical errors are a huge issue and people must be dying as a result” and then they went looking for any data they could massage to support their conclusions. Some would say that the ends justify the means—we now have ‘patient safety’ committees and conferences and lectures and publications. In surgery, some steps to improve patient safety have evolved and become standard, like ‘sign your site’ and ‘time out’. In other areas, safety measures were already in place like checking before blood transfusions.

But it is also very possible that the same folks so concerned with patient safety and medical errors have helped lead to the malpractice crisis of the past 5 years—the public and certainly the trial bar heard ‘98,000 die due to errors’ and immediately think that (1) there are too few lawsuits and, (2) if my outcome was not what I wanted/ expected, it must be because my doctor made an error. Emotions not facts drive most of the medical liability system.

The result in 2006: less access to physicians for the same people that the IOM was supposedly trying to protect.

Eric Novack, MD is host of “The Eric Novack Show,” a weekly radio program dedicated to examining healthcare policy and politics. Sundays on KKNT960 AM Phoenix and on the web at www.ericnovack.com.

Comments

[greedytriallawyer]

Eric...

Pardon my indignation, but who died and named you the Chief Statistician?

“To Err is Human” was published by the Institute of Medicine. Did you really say - "Obviously, the validity of the conclusions is very suspect when you look at the actual data—and the conclusions of the IOM become suspect as well"?

Have you presented your analysis to any recognized scientific body for review and criticism? Or, do you just make it up as you go along.

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