Physicians Fighting For Rigid Standards In The Courtroom...And Railing Against Them In The Hospital Room

Physicians groups and their insurance companies spent tens of millions in Ohio a few years ago on a PR campaign to push for lawsuit "reform." The result: a rigid, one size fits all cap that limits compensation for your physical pain to as little as $250,000 (a more "generous" $500,000 cap applies if you lost a limb or are paralyzed due to medical malpractice). The reasoning? We needed "uniformity" and "predictability" in jury verdicts, and this would help to make the system more stable for insurers and medical providers.

Trial lawyers responded that these rigid rules strip away a jury's ability to make a community decision as to how a preventable medical mistake uniquely affects an injured patient on an individual basis. Each case, each person is unique, and so is their pain and inability to enjoy life's activities. A jury's job, we said, is to examine how the malpractice affected that particular patient, what the malpractice took away, what the patient fought to get back, throw it all in the mix, and render a community decision. Well, we lost that fight and the medical community won and now we have one size fits all, rigid limits when it comes to compensating patients in Ohio medical malpractice lawsuits.


That's why I found this Wall Street Journal piece fascinating. Apparently there is a movement in Congress to impose new "quality of care" rules on physicians. The premise of this recent movement is that

Health-policy planners define quality as clinical practice that conforms to consensus guidelines written by experts. The guidelines present specific metrics for physicians to meet, thus "quality metrics." Since 2003, the federal government has piloted Medicare projects at more than 260 hospitals to reward physicians and institutions that meet quality metrics. The program is called "pay-for-performance." Many private insurers are following suit with similar incentive programs.

What's more, "physicians who fail to comply with quality guidelines from certain state-based insurers are publicly discredited and their patients required to pay up to three times as much out of pocket to see them." Suddenly, physicians are not too happy with rigid rules when applied to the hospital rooms or the operative suite:

rigid and punitive rules to broadly standardize care for all patients often break down. Human beings are not uniform in their biology. A disease with many effects on multiple organs, like diabetes, acts differently in different people. Medicine is an imperfect science, and its study is also imperfect. Information evolves and changes. Rather than rigidity, flexibility is appropriate in applying evidence from clinical trials. To that end, a good doctor exercises sound clinical judgment by consulting expert guidelines and assessing ongoing research, but then decides what is quality care for the individual patient. And what is best sometimes deviates from the norms.

I think that physicians are mostly right on this issue--to a point. Although there are many accepted practices and protocols for treating and diagnosing conditions, there should be room for flexibility and taking into account the uniqueness of an individual patient's profile or medical history that may not be the "norm."

So why are rigid and uniform rules wonderful in the courtroom when it comes to limiting a patient's recovery in a malpractice lawsuit, and suddenly horrible when it limits doctors' payments as a performance criteria?

A tad hypocritical? Me thinks so.