The title of Reuters news item (September 7, 2010) as reported by Maggie Fox, “Malpractice Liability Costs U.S. $55.6 Billion: Study” is to focus of today's blog. Simply put it's not accurate. There are three things wrong about this report.

• The title is inaccurate.
• The assumptions the reporter expects readers to make are erroneous.
• The conclusions she reaches are absurd and I challenge her to prove just one.

The Title

The title implies that a study finds malpractice costs alone amount to $55.6 Billion. That’s not even close to being true. She made the mistake of not reading enough about the study and what it does show. The actual study reports these “costs” include: defensive medical practices such as extra tests and scans, in addition to administrative costs, payments to patients harmed by practice outside the standard of care, and attorney’s fees for these patients; all account for 2.4 percent of the annual U.S. healthcare expenditure, as reported by Michelle Mello of the Harvard School of Public Health.

Professor Chandra, economist from the Harvard Kennedy School of Government, concurs with Professor Mello stating that, “Our study demonstrates that both these simplifications are wrong—the amount of defensive medicine is not trivial, but it’s unlikely to be a source of significant savings.”In addition, Professors Mello and Chandra’s team have concluded that tort reform “would be unlikely to cut overall healthcare spending much.”

The False Assumption: All test included in the study were unnecessary and ordered only because doctors feared being sued.

Really? Where did you get that statistic from and how did they measure unnecessary diagnostic tests? How can anyone make that conclusion? It's based totally on self reporting that points the blame away from the medical professional claiming to be violating the law and committing fraud. It's what we call self-serving. Maybe there are unnecessary diagnostic tests being performed, but not because of lawsuits. If they are unnecessary then the tests are being ordered to inflate the bill - to make money.

And who can say what is unnecessary? If that conclusion of the test being unnecessary is being made after the test comes back and shows no condition, again it's self serving. Let the doctors start making that declaration before they order the test. Any doctor ordering tests unnecessarily knows it's not necessary when he orders it. So let he/she say it and risk not being paid for doing it.  What we do know is that if the doctors admitted non medical related tests were ordered and performed, then it means they are admitting to wholesale fraud of the medical system.

WHO IS COMMITTING FRAUD?

Who said they ordered unnecessary tests? Which doctors admitted that fact? Give me just one name. Did you ask for names? Why not, that’s the real story. Are you trying to hide fraud? Bob Woodward is definitely DOA. RIP Bob.

98,000 people die every year from preventable medical errors; the equivalent of two 737’s crashing every day. The best way to have fewer medical malpractice claims is to reduce the number of medical errors. A safer patient means lower health care costs.

The bottom line is the incentive to do more tests results in bigger payouts to the medical service provider. Capping malpractice awards serves no one except those in the medical community who make all the mistakes. Good doctors aren't asking for a free pass. Experts, including Warren Buffet, argue that the increase in malpractice premiums is a reflection of the insurance cycle and not a reaction to tort liability.

When did you last try a medical malpractice case? How many injured patients have you even interviewed; or is that a side of the story you want told. Whatever happened to unbiased journalism?

The Emperor Has No Clothes

But to be complete in what the readers are allowed to consider, let’s assume Reporter Fox is correct in assuming doctors are ordering diagnostic tests in a majority of cases, just because they are afraid of being sued. That assumption also assumes the tests are not necessary, but are being ordered to just protect the doctor against a lawsuit. If we assume that, then we also have to assume the billing statement to Medicare, Medicaid, BCBS and all other health insurers are fraudulent.  In other words if those tests aren’t medically necessary, then they are being ordered for reasons other than medical necessity; and that’s just plain wrong, illegal and subjects all of us to spending health care dollars in a nonproductive manner. To make that assumption we have to assume all insurance claims examiners are to dumb to catch on to these tests not being medically necessary for health care. Find me one medical claims examiner who will admit to allowing the payment of a claim for unnecessary medical care. Just one.

You have to be ignorant of the system to write this story. Has Reporter Fox ever read her own health insurance plan language? I doubt it; because if she had she would know health insurance plans cover only those tests designated and found to be medically necessary. To argue otherwise is naive at best.

The Big Assumption That Can't Be Proven

Previously I offered to assist anyone in the insurance industry that can prove wholesale medical billing fraud, such as Reporter Fox seems to believe exists, if they will simply step forward with the evidence to prove what they allege I’m all ears. I offer that to claims examiners because they have all the evidence that Fox claims exists, they aren't paid very well and I figure they can use the millions of dollars this whistleblower case will bring to their bank account.

If reporters can prove this claim of unnecessary diagnostic tests then they should prove it with investigative reporting that identifies doctors and claims examiners rather than trying for a cheap grab at an eye catching headline. And if they can not prove it, then they should stop reporting irresponsibly.

So far no one has stepped forward. The big assumption continues to sell news papers, but produces not one name. As I said earlier, the emperor has no clothes.

The Real Issue

The real issue that is avoiding discussion is how to teach responsible professionalism and at the same time avoid errors. It doesn’t matter if it’s medicine, law, accounting, engineering or manufacturing we are all responsible for our mistakes and to advocate for allowing professionals to avoid being held responsible for their mistakes is to invite more, not fewer, professional errors. That is irresponsible from a professional and economic standpoint. For journalists to advocate for reforms without responsibility is indicative of a industry suffering a terminal illness.

• Malpractice Liability Costs U.S. $55.6 Billion: Study
• Harvard School of Public Health, Michelle Mello
• Harvard Kennedy School, John F. Kennedy School of Government, Amitabh Chandra, Professor of Public Policy
• American Association of Justice, Medical Malpractice Fact