Cincinnatus BLOG *** Political Commentary - Social Commentary

In a recent New York Times Op-Ed piece advocating specialized health courts, author Philip K. Howard asserted, “Waste in the health care system costs America upwards of $1 trillion per year. Much of this waste is generated or justified by the fear of legal consequences that infects almost every health care encounter….. The legal system terrorizes doctors. Fear of possible claims leads medical professionals to squander billions in unnecessary tests and procedures. “Defensive medicine” is so prevalent that it has become part of standard protocol.”

In the United States we spend more per capita on health care than any other country in the world. We spent $7,421 per capita as compared to about $3,500 countries with universal national health care systems such as France and Germany. We don’t receive better care in the U.S. than the French or Germans; we just pay a lot more for it. In fact, according to the latest data, we spent $2.2 trillion in 2007 on health care, or 16.2% of our Gross Domestic Product (GDP). Even more worrisome is that expenditures continue to rise at an alarming rate of 6% annually.

Here’s a radical idea: Why don’t we fix the current system before the Obama administration throws another $634 billion federal dollars into this sinkhole. We appear to be focused primarily on how to pay for healthcare and not on how to deliver it to all Americans. For example, if the cost per capita for health care were reduced to $6,000, it would pay for the 46 million uninsured with some change left over.

Elimination of the cost of defensive medicine is a crucial step in a “real” health care reform effort. Defensive medicine occurs when doctors order tests, procedures, or visits, or avoid high-risk patients or procedures, primarily to reduce their exposure to malpractice liability. The cost to Americans is difficult to calculate because it is divided between inappropriate behavior and the more insidious and costly subversion of the whole health care system. 

Several studies give us at least a sense of the magnitude of the easily identifiable problem of inappropriate behavior. Conservative estimates put its cost at more than $100 billion annually. According to one study of more than 900 physicians by the Massachusetts Medical Society and UConn Health Center researcher Robert Aseltine Jr., about 83 percent of physicians reported practicing defensive medicine, with an average of between 18 percent and 28 percent of tests, procedures, referrals, and consultations and 13 percent of hospitalizations ordered for defensive reasons.

It is instructive to look at a common example of the more insidious systemic problems that our overzealous malpractice system creates. Since the 1960s, hysterectomy has been one of the most frequently performed inpatient surgical procedures in the United States, with an estimated 33% of women undergoing a hysterectomy by 60 years of age. The medical/legal “rationale” for this excessive number of hysterectomies is that it prevents cancer and prolongs the life of women.

There is a relatively easy way to calculate how many of these procedures are medically unnecessary. In Western Europe, for example, only about 10%-12% of women under 60 have undergone a hysterectomy. Yet European women do not have a higher incidence of reproductive cancer and they actually have a longer life expectancy than American women. Conclusion, two-thirds of all hysterectomies performed in the United States are unnecessary.

For lack of a better phase I will call this ubiquitous problem the “Legal Hysterectomy” procedure. What gynecologist in the U.S. will cease performing questionable hysterectomies, knowing that in the unlikely event the patient develops a reproductive cancer or just excessive menstrual bleeding a lawsuit is a virtually certainty? Therein lies the problem. Every medical specialty has its own “Legal Hysterectomy” procedures and combined they not only waste unconscionable sums of health care dollars but subvert the medical system itself.

We are an overly litigious society. The United States has just five percent of the world’s population, but has the majority of the world’s lawyers, and nine out of ten lawsuits in the world are filed in the United States. It would be difficult, to say the least, to convince both houses of Congress as well as State Legislatures, comprised of 90% lawyers, that legal reform may be an essential step to providing affordable universal healthcare. However, as healthcare costs begin to approach 20% of GDP in coming years, some hard choices will have to be made.

A good first step would be to follow Mr. Howard’s advice - “America needs special health courts aimed not at stopping lawsuits but at delivering fair and reliable decisions. A special court would provide expedited proceedings with knowledgeable staff that would work to settle claims quickly. Trials would be conducted before a judge who is advised by a neutral expert, with written rulings on standards of care.”