Medical Liability Reform Is Essential to Contain Health Care Costs

If you had a Mercedes with a leaky radiator, worn-out shocks, and an untuned carburetor that was otherwise in very good physical and mechanical shape, would you scrap it? No, you'd fix what needed to be fixed at the lowest cost.

The health care system is not broken. But financing, insurance, and liability are badly damaged, and these should be fixed first.

What we have now is primarily a financing crisis and a long-term failure of congressional leadership.

Congressmen are neither stupid nor ignorant, but they often act like they are. They have looked the other way for decades on the national debt, Social Security, and Medicare, to name a few areas. Why? Because they want to get re-elected and therefore collectively ignore issues that might blow up in their political faces. They know that an entitlement doomsday is coming -- they just hope it's not on their watch.

The financing of health care is the big problem at hand, but it's easier to point to the shocks, radiator, carburetor and other pieces of health care and tell people that "health care is broken" and needs a complete overhaul. But doing that could be disastrous.

Here's what is broken -- and costing us all a lot via increased health expenditures:

• Not having a serious discussion about technology and end-of-life issues and associated medical liability issues at the government/health care financing levels. We must include physicians in those discussions.

• Not addressing the use of newer high-cost technologies when there is low marginal benefit but when the physician is obligated to recommend their use. (This, too, is a legal issue.)

• Not requiring health insurers to eliminate pre-existing coverage exclusions.

• Not requiring health insurers to accept all applicants at some "reasonable" price.

• Not addressing a huge medical liability issue that permeates all aspects of medicine -- and which legislators and health economists tend to minimize. Whether they know it or not, this significantly affects medical recommendations and is on the mind of every physician every day -- and on the minds of trial lawyers as well.

• Not requiring co-payments for Medicare patients (and others) at a level to create ownership in the process and decrease unnecessary services.

• Not requiring Medicare patients to pay some portion of the huge cost of laboratory tests, which balloons as patients age.

• Not addressing the disparity in payments to primary care physicians and specialists, which has led to a dramatic drop in projected per capita primary care providers and an increase in specialists.

Consider this example of the costs of medical liability:

Ten years ago, if a patient 50 years old or younger was seen in the emergency room for chest pain -- and testing for cardiac and pulmonary causes was negative -- then the patient was sent to me, the family physician, for follow-up and evaluation.

Many of these patients had panic attacks or other anxiety attacks (about 35 percent). Others had chest-wall pain, or costochondritis (15 percent), and many had gallbladder pain, esophagitis, or gastritis (45 percent). There are many possibilities and so a generalist was best capable of identifying the problem and the solution. The result was a very cost-effective -- and effective -- evaluation and treatment.

Now, essentially everyone over 30 with chest pain is sent from the emergency room to a cardiologist for follow-up. The cardiologist will do additional cardiac testing (for legal protection) and, when the results are normal, may refer the patient to a pulmonary physician who may do some additional tests -- or refer to a gastroenterologist or a psychiatrist.

If referred to a psychiatrist, the patient usually will not follow through -- and so will again show up in the emergency room with chest pain within one to four months. All these physicians do their jobs well. But we're talking about cost-effectiveness in a patient at low risk for a life-threatening condition. What is needed is someone who knows the patient and can look at the whole situation, not evaluate for one or two specific disease states in a specific area of expertise.

What is driving this process is, in large part, fear of medical liability.

When you drive on the interstate, you wear your seat belt even though your chance of an accident is very low -- less than 0.01 percent. So why do you wear it? Because of the devastating consequences of a serious accident without it.

After a full emergency room evaluation, a young patient has about a 0.01 percent chance or less that a serious cardiopulmonary problem has been missed. But that is also a 0.01 percent chance of a lawsuit for the emergency physician. And lawsuits are often devastating to physicians and their families. Whether the physician's decision-making was correct or not doesn't matter to the system. He may be found not liable, but the very process of enduring a lengthy lawsuit is devastating, win or lose.

So, much of the expense in health care is incurred to exclude what is unlikely, not to identify what is likely. Numerous tests are run for this purpose, and until we address this issue, health care will always be costly.

The only way liability-driven costs are likely to change is if there is a plan for compensation of individuals who experience negative outcomes independent of fault. Most often there is no one specific to blame. Bad things do happen. This idea is one that legislators should take the lead on. It would reap a large financial benefit for individuals, the government, and society in the long run.

Implementing this idea, and others, would be like replacing the shocks on the old car that otherwise works well. But a total system overhaul is likely coming and that has me very worried. Our legislators haven't been mature enough to address some serious, long-term problems. Are we now going to trust them to dismantle health care and rearrange the pieces? Let's not junk the Mercedes just yet. The next car may be a real lemon.

Jeff Keegan, M.D., is a family physician practicing in Richmond. Contact him at .