The late Cornell Law School legal scholar, Theodore Eisenberg, once wrote this about the epidemic of medical errors in this country:
One possible factor contributing to the continued high rate of errors is that doctors do not expect to bear the full cost of harms caused by their negligence. …and [h]ospitals do not bear the full costs of the harms caused in them even though hospitals directly and indirectly influence patients’ risk of medical error.
In other words, if you know you're not going to be held accountable for causing harm, might you be less careful? Lawmakers are often asked the question this way (if we might paraphrase): “With medical negligence still occurring at alarming rates in this country, is it a good idea or a bad idea to cap compensation to injured patients, and further reduce the accountability of negligent doctors and hospitals?”
The answer seems so obvious. However, such things are often hard to prove. But no more.
In 2014, we wrote about several just-released empirical studies showing that when a state caps damages for injured patients, the result is more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” These studies, which are not easy to do and in fact take years of data collection, have recently been updated. Damn if they don’t show the same thing.
Just this week, SSRN published the newly-updated “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform," and once again, researchers found “that patient safety gradually worsens after cap adoption.” The authors found “strong evidence that a reduction in liability risk leads to a reduction in safety,” which “is consistent with general deterrence, in which lower liability risk leads hospitals to invest less in safety and physicians to be less careful in general.”
To put it another way, “Liability for harm induces greater care and relaxing liability leads to less care.” Moreover, add the authors, “This paper also contributes to the literature on the deterrent impact of legal liability for personal injury more broadly.”
As to the impact of caps on health care costs, we covered another updated study in our last PopTort PopQuiz. Med Mal True or False Edition! Here's the quiz question again:
TRUE OR FALSE?
- After a state caps damages for the purpose of decreasing unnecessary tests and procedures (i.e., reducing "defensive medicine"), common tests like cardiac stress and imaging tests do, in fact, decrease.
False. Instead, such tests appear to increase, as does Medicare Part B lab and radiology spending. Researchers say,“If the policy goal is to limit healthcare spending, damage caps are simply the wrong tool.… [A] core message from our findings is that writ large, the ‘adopt damage caps, reduce spending’ story lacks empirical support. Instead, measures to reduce overtreatment will need to be carefully targeted to particular areas of concern.”
So, we good now?
An even more disturbing policy and practice is when inherently harmful treatments are made a “standard of care” such that there is no chance of justice for those harmed.
Case in point, the gross overuse of hysterectomy (uterus removal) and oophorectomy (ovary removal / castration). Only ~10% are done for a cancer diagnosis. ~45% of women end up having a hysterectomy due to “marketing” tactics and lack of informed consent about diagnoses, treatment options and the many after effects. Equally disturbing is that based on discharge data, the ovary removal rate is 71% of the hysterectomy rate.
A woman’s sex organs have been proven over and over again to be essential to good health her whole life. Hysterectomy displaces the spine, hips and rib cage (due to the severing of ligaments / pelvic support structures). It also displaces the bladder and bowel. Sexual dysfunction and emotional emptiness are commonly reported consequences (even when ovaries are not removed). Impaired ovarian function / endocrine dysfunction has been medically proven which predisposes women to all or some of the many increased health risks and accelerated aging associated with ovary removal / castration.
According to this study - https://www.ncbi.nlm.nih.gov/pubmed/16055568/ - ovary removal as late as age 75 is associated with increased mortality. This article lists the increased relative risks and questions why this practice continues - https://www.maturitas.org/article/S0378-5122(11)00356-2/fulltext - as does this one - https://wtvr.com/2016/09/29/study-remove-ovaries-age-faster/.
Posted by: Diane | February 09, 2019 at 03:09 PM