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Austin, Tex.
IT’S been a year since health care reform was signed into law, and since then both Republicans and Democrats have been trying to address one item it left out: medical malpractice reform. In last month’s budget proposal, the Obama administration offered a solution: a plan to encourage evidence-based medicine by limiting the malpractice liability of doctors who follow clinical practice guidelines — in effect, granting them immunity.
Doctors love this proposal, and patients should too: When doctors follow good guidelines they are less likely to order too many or too few tests or to prescribe the wrong treatment.
Unfortunately, the proposal will not achieve the noble goal of providing quality care at a reasonable cost because the current guidelines, written by nonprofit medical groups and for-profit insurance companies, are not good enough.
First, they often conflict with one another. Recommendations for when and how frequently to give women mammograms, for instance, notoriously vary depending on which group is giving them.
In addition, there are conflicts of interest. Guidelines produced by insurance companies sometimes put their interests first. Malpractice insurers, for example, may recommend yearly mammograms, even if they are not necessary, because they bear the costs of lawsuits for late diagnoses of breast cancer — and not the costs or health risks of the extra mammograms. Moreover, the nonprofit groups behind many other guidelines have traditionally depended on pharmaceutical and medical device companies to finance their work. Last year, the Council of Medical Specialty Societies issued a new code of conduct seeking to stop these industries from sponsoring the development of guidelines, but there are still too many loopholes, and thousands of guidelines produced before the reform are still in circulation.
Most troubling of all is that the groups behind the guidelines bear no liability for producing bad ones. No matter how poor the care they prescribe, it is the doctors who depend on them who are punished.
Mr. Obama’s proposal to limit the liability of doctors who follow these flawed guidelines (included in a $250-million plan for overhauling states’ malpractice systems) is clearly not the way to better care. Immunity is a good idea. It’s just that we need to create the incentives necessary for the production of optimal guidelines first.
This is no secret — last week the Institute of Medicine put out a report listing new standards for promulgating guidelines. I was a consultant on the report, which goes a long way toward improving the system, but I worry about the extent to which these standards will be followed. I have a different proposal for improving the guidelines:
Instead of nonprofit groups producing free guidelines, or insurance companies producing ones that serve their own interests, the government should require health care providers to buy or license guidelines from what I call private regulators, for-profit companies with expertise in evidence-based medicine. Doctors would have immunity from malpractice cases if they followed the guidelines. However, the private regulators themselves would be liable if their guidelines were found to deviate from optimal care.
The profit-seeking forces of the market on the one hand and legal accountability on the other would help private regulators strike the right balance between patient safety and cost of care. Private regulators would discourage the overuse of expensive medical procedures because doctors, under pressure from insurance companies to keep costs low, would be unlikely to invest in guidelines recommending unnecessary procedures. But if the guideline-makers failed to recommend an appropriate procedure, they’d be held responsible for the patient’s health.
Just as they can now, doctors could deviate from the guidelines when required. Their discretion and autonomy would be preserved. But in most cases, when guidelines apply, doctors could follow them without having to worry about being held liable, and more important, about getting bad advice.
Such a system may not be too far off: medicine is already moving toward for-profit guidelines. UpToDate, First Consult and eMedicine are just a few new databases compiled by for-profit companies in the business of making technical, evidence-based medicine more accessible to doctors. This is certainly exciting, but to provide doctors with the peace of mind they deserve, these companies need to be held accountable for the advice they give.
Almost every other product Americans encounter is subject to laws that guarantee that the producer suffers when its product is subpar. There’s no reason medical guidelines should be any different. With the proper incentives, these private regulators could help President Obama carry out the health care reform he signed into law a year ago.
Ronen Avraham is a professor at the University of Texas School of Law.
Article source: http://www.nytimes.com/2011/03/29/opinion/29Avraham.html?partner=rssnyt&emc=rss
David Cameron knows the drug laws aren’t working; his failure to change them is simple cowardice
The drug laws are counter-productive, and David Cameron knows it
Let’s play a game of make-believe. Pretend you’re a Home Office minister. One of your European neighbours employs a radical public health policy and, 10 years later, has seen huge improvements in the measurements of all the relevant health outcomes. The evidence for the efficacy of that health policy is widespread; the British Medical Journal and World Health Organisation have both issued major pieces of research, along with one of the leading journals in the field, which say that in general the policy has positive effects. Further, the proposed policy is significantly cheaper than the existing one, and has the added bonus of giving more responsibility and freedom to individual citizens. What do you do?
Well, obviously, if the policy is the decriminalisation of drug use, then you reject it out of hand.
The AFP reported, back in last July, that Portugal has reported a 50 per cent drop in “problem” drug users in the decade since they decriminalised all drugs. Dr Joao Goulao, the president of the country’s Institute of Drugs and Drug Addiction, says that “There is no doubt that the phenomenon of addiction is in decline in Portugal,” although he is quick to point out that other factors, including “treatment and risk reduction policies”, have played their part as well as legalisation. Of course, as the AFP story notes, those treatment and risk policies are part of Portugal’s health-based approach to drug use, and taken together the policies have led to a “spectacular” drop in infections like HIV and hepatitis among intravenous drug users, and a significant drop in crime. And a report by the European Monitoring Centre for Drugs and Drug Addiction praised the Portuguese approach, saying it, unlike other drug policies, is or at least attempts to be “internally consistent… pragmatic and innovative… transparent, coherent and well-structured”, and saying that its success in reducing use is a blow to the theory that “decriminalisation, or a less punitive approach, leads to increased use” of drugs.
I write a close variant of this piece about once every three months. Some new piece of research is published suggesting that drug prohibition laws do more harm than good, or some high-profile former politician or policeman or lawyer comes out saying that police resources are being wasted on an unwinnable war, or yet another triumphant statistic gets trumpeted out of Portugal. I’ve written about a major BMJ piece, backed by the Transform Drugs Policy Foundation, which says “prohibition on production, supply, and use of certain drugs has not only failed to deliver its intended goals but has been counterproductive”; a WHO report saying “countries with stringent user-level illegal drug policies did not have lower levels of use than countries with liberal ones”, and a systematic review in the International Journal of Drug Policy last year which found that “increasing drug law enforcement is unlikely to reduce drug market violence. Instead, the existing evidence base suggests that gun violence and high homicide rates may be an inevitable consequence of drug prohibition and that disrupting drug markets can paradoxically increase violence.”
But every time, the Home Office deadbats with bland statement on the lines of: drugs are bad, mmmkay. This time it’s: “We have no intention of liberalising our drugs laws. Drugs are illegal because they are harmful – they destroy lives and cause untold misery to families and communities. Those caught in the cycle of dependency must be supported to live drug free lives, but giving people a green light to possess drugs through decriminalisation is clearly not the answer. Through the cross-government drug strategy, we are taking action through tough enforcement, both at home and abroad, alongside introducing a temporary control power and robust treatment programmes that lead people into drug free recovery.”
If you managed to read all the way through that, you’ll notice it says nothing whatsoever about the evidence, despite my specifically asking for a response to the BMJ, WHO and IJDP studies and the Portugal experience. The Home Office, and the Government, is deliberately ignoring the reality of the drug laws’ failure.
No one claims that decriminalisation, or rather a cleverly instituted, multi-layer regulation of drug policy as suggested by Transform, will be a magic bullet. But the evidence, at least all the evidence I’m aware of, suggests that it will improve matters, or at the very least not make them worse, if carried out intelligently. What’s more, David Cameron knows this, or at least he knew this in 2005, when as a contender for the Conservative Party leadership he called for “alternative ways – including the possibility of legalisation and regulation – to tackle the global drugs dilemma”. He said: “Politicians attempt to appeal to the lowest common denominator by posturing with tough policies and calling for crackdown after crackdown. Drugs policy has been failing for decades.” Nick Clegg in 2002 also called for “decriminalising the use of certain substances” and “partially decriminalising the sale of cannabis”, and “legalis[ing] the use of drugs for purposes other than medical or scientific ones”, ie recreational use.
But, as we’ve seen, once politicians get in power they get scared. Like their predecessors, this Government is a bunch of political cowards.
£15bn lawyers’ bill for NHS blunders: Avalanche of no-win, no-fee claims push costs up 13%
- Health Service sets aside £15.7bn to deal with ‘no-win, no-fee’ claims
- Compensation claims cost NHS more as one third of money paid out goes straight to lawyers
By
Daniel Martin
Last updated at 12:08 AM on 7th February 2012
An avalanche of claims against doctors has left the Health Service with a £15.7billion bill.
The sum – one seventh of the annual NHS budget – has had to be set aside to pay compensation over future years to tens of thousands of victims of clinical negligence.
A report by MPs reveals that much of the bill is the result of blunders that have left babies brain-damaged.
The rise on the Health Service bill is being partly blamed on ‘no win no fee’ lawyers who encourage people to make claims as they don’t pay costs if they lose
Advances in medical science mean that these children live much longer, increasing their lifelong care bill.
But a substantial part of the rise is also being blamed on ‘no-win no-fee’ lawyers, who encourage patients to make negligence claims because they will not have to pay costs if they lose.
If the patients win, the NHS has to pay even more than normal because no-win no-fee lawyers charge more to defendants to cover their own bills in lost cases.
Around a third of all the money paid out by the NHS in compensation goes straight into the pockets of lawyers.
The £15.7billion figure, which dates from 2009/10, is 13 per cent up on the liability bill from the previous year.
Officials admit it could be an underestimate because, if more court cases than expected go against the NHS, the full cost could exceed £23billion.
The figure is contained in a report on the ‘Whole of Government Accounts’ by the public accounts committee. It also revealed the full cost of Labour’s PFI deals.
It shows that in 2009/10 – Labour’s last year in power – the NHS believed that clinical negligence claims would cost it £15.7billion over future years.
This is an actuarial calculation, based on the number of claims the NHS believes there is a very good chance of it not being able to defend, the severity of the claimed errors and how much a victim would be paid out for these mistakes.
The figure includes an estimate of the cost of mistakes that have not yet been claimed for.
Last year, more than 8,500 clinical negligence claims were received by the NHS – 30 per cent up on 2009/10. Around £1billion is actually paid each year to victims of blunders. In the report, the Public Accounts Committee warns: ‘Claims for clinical negligence outstanding at 31 March 2010 could cost £15.7billion, or 15 per cent of the government’s total provision for future expenses arising from events that have happened in the past.
‘The Treasury … did not know that clinical claims recorded by the NHS Litigation Authority had increased by some 31 per cent in 2010/11 or what plans were in place to reduce liabilities for clinical negligence.’
Peter Walsh of Action Against Medical Accidents said: ‘One of the most unhelpful things that has happened in recent years is the increase in the more disreputable lawyers who get involved in no-win no-fee deals. This makes it all the more baffling that the Government wants to scrap legal aid for clinical negligence cases. This will encourage claims farmers and no-win no-fee, leaving the NHS to pick up the tabs. This bill will increase.’
Emma Boon of the TaxPayers’ Alliance said: ‘It is extremely worrying that clinical negligence is costing taxpayers billions – especially as no-win no-fee solicitors and a growing compensation culture are partly responsible.’
She added: ‘Health chiefs need to learn lessons from negligence cases and urgently address this issue. The cost to taxpayers is shockingly high.’ A source at the Ministry of Justice said there were concerns that lawyers may be artificially inflating the cost of claims.
A spokesman for the Department of Health said: ‘The vast majority of the millions of people treated by the NHS every year experience good quality, safe and effective care.
‘However, if patients do not receive the treatment they should, and mistakes are made, it is right that they are entitled to compensation and the NHS Litigation Authority plays a vital role in ensuring claims are settled as swiftly as possible.
‘The Government’s ambitious proposals for reforming the civil litigation system will support the NHS in dealing with costly litigation cases.
‘We want to strike the right balance between access to compensation claims and ensuring costs are proportionate, sustainable and affordable.’
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The treatment my husband received was terrible. It cost his life. Both expert witnesses state his care was negligent. Th hospital is dragging it on, the only winners are the ttNhs solicitors. This is why they refuse to settle.
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Sadly, these “no win no fee” lawyers are necessary to get the NHS to pay out for their mistakes. I have friends with a severely disabled child, resulting from problems at birth. Others only narrowly escaped the same fate. We nearly had the same. Inexperienced, overworked midwives and, I guess, over stretched doctors. Not a great combination. I had to physically drag a doctor into the room when my first child was born. Afterwards he admitted I had done the right thing.
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this country sems to be run by lawyers for the benefit of lawyers
and it is the taxpayer who picks up the bill
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- Mike Greenstein, London, UK, 07/2/2012 02:56
Completely agree. I used to be an associate Lawyer for a PI solicitors and you can guarantee that the only way you could get the NHS litigation team to pay out would be to take them to the Court steps. They would always make you make the most expensive decisions before accepting any liability or paying out any damages. And when it came to our bill, my God, the amount of times we issued Court proceedings just to get those paid! We recently claimed for a lady who lost her kidney because her urologist had left a nephrostomy stent (a little tube they put into the kidney and bladder if you have trapped kidney stones) in situ for 6 months. It made her septic and she lost one kidney and part of her bladder. She now needs a transplant and is on dialysis and has to wear a catheter, she’s only 23. If doctors and hospitals don’t want to be sued, they shouldn’t make such stupid mistakes.
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A third of the fee goes to the lawyers? That’s no surprise at all. As a claimant personal injury solicitor, I can tell you that any solicitor who has come up against the NHS Litigation Authority will vouch for the fact that they defend the indefensible, only paying out many claims after issue (commencement) of legal proceedings or on the approach to the door of the court. If they settled claims at the correct time rather than fighting to the death with a wish that the injured claimant gives up, then the legal costs (including that of their own solicitors) and therefore the bill would be a fraction of what it currently is.
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What wrong with no win no fee, everyone else in the country works on that basis, where if they cant deliver the goods or services they offer, they dont get the fee. Why should lawyers be any different. They should all be forced to do no win no fee, because right now, they just cherry pick the easy winners, and refuse to take the others on that basis, but if you have a weak to un-winnable case, they will still take it if you put the cash down on their desk. They will tell you that you have a good chance of winning, charge you a fortune in costs, for a case that should never go to court, as you have no chance.
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Unfortunately people aren’t perfect and doctors will always make mistakes. We need to continually strive to minimize errors and their impacts and find the most cost effective way of compensating patients. I’m not sure this is being done at the moment.
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Well maybe if they did the job right they wouldn’t face the fines! It’s not rocket science! Don’t be negligent and it won’t cost you!
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Anyone with any sense whatsoever should have known that Labours PFI bill was going to be HUGE. And also any fool knows that no win no fee is a racket, that could have been stopped by the Government any time it wished . The problem with Government is that they have not a clue what goes on under their noses. Proof of this will be what they are going to do with the NHS . It will cost twice as much as they thought and will be a disaster, and any nurse on the wards could tell them that
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Then hire the right people, not ones that make mistakes and them hide them, maybe offer proper treatment, not just put aside people or make them come back every 3 months just to be told to come back again.
The NHS makes their own problems by not treating people properly until it gets to a stage were the illness costs even more money, nip it in the bud at the start so it doesn’t get out of hand.
The NHS does not diagnose people properly first time round, hence why people always keep going back to see a different doctor and the problem never gets resolved, cost the NHS even more money.
I have problems with my ear and have been told that its my depression thats causing it, yet one i first had the problem i never had depression for at least 3 years, my depression developed because i wasnt being properly treated and I could not take anymore of the pain.
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Article source: http://www.dailymail.co.uk/news/article-2097448/15bn-lawyers-NHS-blunders-Avalanche-win-fee-claims-push-costs-13.html?ITO=1490
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