Comment by christkv | Hacker News Reader

Comment by christkv | Hacker News Reader

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It's interesting when this comes up. Having grown up in a medical family I think there are some interesting misunderstandings about medicine between laymen (see fancy words here).

1. The treatment outcome between the standard treatment and the deluxe treatment is more often than not statistically insignificant. Basically medicine is still a barbarically primitive science where we barely understand what happens in a body. Thus trials take years and years and yet even if new drugs are approved they end up hurting people.

2. The medical "market" will never be a perfect, due to information asymmetry between the doctor and you the patient. Even if you think you know it's unlikely you are able to understand if option A is better than option B for your treatment.

3. If you have a heart attack you are in no position to negotiate what is a fair price or not, nor are you able to take a rational decision about what treatment is the best cost/benefit for your acute condition. Thus the "provider" has all negotiation power and can charge you what they want (you can of course refuse treatment but that's unlikely to happen).

4. Throw in a boondoggle of more or less serious insurance providers that creates what amounts to hundreds of "distinct" overstaffed administrative systems and you've got the recipe for a dysfunctional expensive non sustainable health care system where more and more "non-poor" people will outside any sensible coverage for themselves and their families.

Any solution to this problem will be drastic both for the industry as a whole and for society.

That said there are some possible good things happening over the next decade. Having a dad that works on cancer vaccines I can tell you that for certain cancers in the next decade the treatment will be as easy as a shot in the arm every week and the prognosis will be much better than the "literal" clubbing of people half to death with inaccurate drugs and chemotherapy.

I would add:

5. Some patients like to file lawsuits, hence expensive lawyers, malpractice insurance etc.

Vicious cycle (involving hospitals, big pharma, lawyers, insurers) - can't just fix one aspect.

However, as you said - the latest advancements in personalized treatment of cancers are very encouraging. Treatments are becoming more effective, and doctors are finally starting to treat the untreatable.

The statistics show that most malpractice suits are meritorious, and malpractice suits account for 2% of the total costs of the medical industry. You can muddy the waters with "unnecessary testing" but then you have to consider both sides of the coin. If bills would come down if doctors did less tests out of fear of malpractice suits, how much would injuries from mistakes go up? The problem is: there is actually a lot of malpractice going on, and that has costs too.

Tort reform is politically attractive, but it's not clear it's solving a real problem. See: http://www.press.uchicago.edu/Misc/Chicago/036480.html, http://archive.sph.harvard.edu/press-releases/2006-releases/..., http://www.slate.com/articles/health_and_science/medical_exa...

The basic issue is that the medical field is unusual in being self-regulated. The malpractice system is really the only way we have to hold doctors accountable, and even within that, we adopt the unique practice of letting doctors themselves adopt the standards to which they are held, rather than using objective standards.[1]

We don't need to handle malpractice via the tort system. But in its absence we'd need something, say an OSHA-like agency that handled administrative complaints against doctors accused of malpractice. There isn't a free lunch here.

[1] Note that e.g. automotive engineers don't get to set the standards for negligence in the context of designing cars!

I've found there are some natural obstacles to getting clear data on tort reform.

One example comes to mind, from a few years back, when there was a movement to repeal tort damage caps in Kansas. Insurance companies turned out literal dozens of experts to testify before the state senate, all claiming that rates would skyrocket if the tort reforms were repealed. (There were something like 34 experts against the repeal to one lone attorney as an expert witness in favor of it, if I recall correctly.)

Now, it just so happened that Iowa had added the very same damage caps to their code the previous year. Bit of a fortuitous natural experiment, eh? Naturally, the curious senators asked each expert in turn how much premiums were lowered in the nearby state over the course of the last year. Sadly, they couldn't get an answer on the record, because every one of them fainted as soon as they heard the phrase "lower premiums."

Pretty much everything is this way. We get mad that politicians don't govern based on what the experts say, but the fact is that you can find an expert to say anything, and what is "obvious" or even "true" depends on what circles you travel in. Moreover, just as in this situation, a lot of the people who are in a position to really understand how a policy change affects the system (in this case, insurance companies and lawyers) also have a personal interest one way or another.

I'm personally quite wary of tort reform. Not because I'm a lawyer (I'm a lawyer because I'm the kind of person who is wary of tort reform!) They promised us the same thing about binding arbitration. It would get those overpriced lawyers out of the equation and let businesses just hash it out civilly with each other, they said. And look what happened--binding arbitration basically just became a way for big companies to force consumers to give up their right to sue. Companies rarely use it amongst themselves:

"When it comes to contracts with each other, corporations are far less likely to use arbitration clauses than they are in contracts with consumers. This was the finding of a December 2007 study by Cornell Law Professors Theodore Eisenberg and Emily Sherwin and Professor Geoffrey P. Miller of NYU Law School, who examined contracts from 21 financial and telecommunications companies. The data showed mandatory arbitration clauses in over 75 percent of consumer agreements but in less than 10 percent of their negotiated non-consumer, non-employment contracts." (http://centerjd.org/content/fact-sheet-mandatory-binding-arb...). In other words, corporations reserve their right to litigate. Arbitration is for the poors.

I don't really see tort reform playing out any other way, unfortunately. I wouldn't be opposed to a more regulatory or administrative scheme, but damages caps are just a way of shifting costs from the medical system (not just sympathetic doctors, but billion dollar hospitals and insurance companies) onto the people they injure. Indeed, of all the various reforms, damages caps are the worst possible one. By and large, if a jury awards someone a couple of million dollars, it's because the doctor really fucked up. Damages caps under compensate plaintiffs in the precise situations in which they are the most likely to be in the right! If we're worried about shakedowns, a far more sensible approach would be a "damages threshold." If you can't show you suffered more than say $10,000 of damages, nobody pays up. That would deter a lot more of the people just looking to make a quick buck.

Another option would be just giving some fraction of punitive damages to the state.

When lay people are shocked by judgment amounts, usually its because the judge was using some sort of damage amount that would actually make the offending institution change its behavior. But you could provide basic damages to make the patient whole plus lawyers fees to the patient, then allow the judge to reserve some portion of punitives for the state, and just label it something like a regulatory fine. People understand that fines can be high, they don't understand when people appear to get a windfall well beyond what might make them whole.

(OTOH, maybe if someone goes through having a scalpal left in them, they deserve whatever "windfall" they can get.)

Do you have any sources on alternative systems of accountability for doctors? Or that go a bit more in depth about how they are unique in self-regulation? I haven't heard of this before, so thanks!

So in most negligence cases, plaintiffs have to prove that the defendant failed to exercise "reasonable care." That is to say, the defendant failed to live up to the standard of caution that society had established for his activities. The standard is context-specific, but is almost always an objective one. What would a "reasonable person" have done in that situation? What would a "reasonable store owner" have done about the ice on the sidewalk in front of his store? In answering this question, the jury gets to impose its understanding of how an ordinary person should behave. This is true even in technical situations. Engineers at car companies are ultimately held to the standard of "did they behave like a reasonable person would?" Expert testimony can help explain to the jury what it needs to know to decide that question, but its the jury that gets to decide where the bar should be.

Medical malpractice is different. In medical malpractice, the relevant inquiry is: "what would a reasonably competent doctor practicing in a similar community have done?" That is to say, medical communities (e.g. rural hospitals in TN or urban hospitals in NY) get to establish the standard for how much caution doctors should exercise. Expert testimony is admitted to explain to the jury whether or not the doctor adhered to those standards. The jury doesn't get to establish the standard, only to determine based on expert testimony whether the standard was met.

The practical takeaway is this: "most deep oil drilling engineers do this" is a far weaker defense in a regular negligence suit than "most doctors do this" is in a malpractice suit. The medical profession is allowed to regulate itself in a way that say oil drilling companies are not.

As for alternatives, here's one paper that gives a pretty good literature review and suggests some alternatives: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3195420/

Richard Epstein's (a very prominent law professor) suggestion is to let patients contract with hospitals ahead of time to agree on dispute resolution mechanisms: http://online.wsj.com/article/SB124631652544770707.html

As a general matter, there are a fixed set of ways to deal with this kind of problem. You can have private litigation (as in the malpractice system); you can have government regulation and enforcement (e.g. as in environmental protection); you can have administrative claims systems (e.g. as in workers compensation or no-fault auto insurance).

The alternative to the malpractice system is one of the above. It's not capping damages for a grossly negligent baby delivery to $50,000 despite the fact that it could easily be an injury of several million to the baby and his family (and ultimately to society through lost productivity).

Deleted comment

(I meant to upvote and missed, and I can't undo. :< )

Addressing this was W Bush's solution to the healthcare cost problem. But payouts due to malpractice suits are around 1% of medical expenditures and not all of those payouts are bogus.

Directly, yes. But there's a significant effect in overtreatment that is substantially higher. Hard to tell how much higher, because of course, all this overtreatment is justified somewhere. What we know is that we're paying about $10k/family/yr more than we should. The article treats this pretty well -- noting that malpractice isn't the only solution, but admonishing democrats for being too swayed by trial lawyers who want to keep feasting at the malpractice trough.

It is easy. The US pays twice as much as comparable industrialized countries for the same outcomes. Doctors in the US make twice as much, overhead is twice as much, and we pay twice as much for prescription drugs.

The US also does most of the innovation, develops most of the drugs, equipment, devices, and treatment regimens, and/or improves on or develops feasible products and treatments based on foreign research and development elsewhere.

Most of drug R&D is done as basic research in universities. Drug companies do do research, but their marketing budgets are higher than their R&D budgets. A large portion of the research is looking for baldness-cure/dick/sex pills, along with a substantial sum spent on patent work-around research which isn't setting out to create anything new, just do the same thing in a new way to work around someone else's patent.

The cost of the drug R&D you are talking about (aside from publicly funded NSF/NIH research) is minuscule in comparison to the healthcare spending expenditures we are talking about. Device/procedure research is even less of a blip.

Tort reform would help in two ways: The obvious reduction in lawsuit costs, and also help to lower the incentive for overtreatment. However, it is pushed way too often by the conservative establishment in the U.S. as a panacea for fixing our health costs. This is completely wrong. It is a tiny chunk of the problem, and the overtreatment incentives are still there, due to profit motives of so called "non-profit" hospitals, as detailed in the long ass article.

The one tort reform I want is:

* the ability to set up a private NHS-like system in the US.

Right now, if you do this, you will get sued into oblivion.

But I'd like to put $5,000 into a pool with a bunch of other families, and have a bunch of technocrats (that I choose through the market, not one big group where I can hope I can vote for) decide how to best spend that money. Cover some things, don't cover some other things. This will necessarily mean that someone doesn't get covered for something, not because the treatment doesn't work, but because the treatment is not worth the money.

Isn't that very close to the HMO model?

Yes. And when they said "no" to radical chemotherapy, they were sued and forced to pay for it. (It turns out to actually reduce patient outcomes.)

Only the government would have the ability to say no, in practice, and wouldn't due to politics (saying no means you'll be actively opposed by that person's family/etc., and it will be used in campaign attack ads; saying yes is a marginal increase in cost spread out over everyone.

> If you have a heart attack you are in no position to negotiate what is a fair price or not

But that's not what's described in the article: "his wife Stephanie knew she had to get him to MD Anderson Cancer Center in Houston. Stephanie’s father had been treated there 10 years earlier"

If you consciously choose to consider only a single provider, it's nobody's fault but your own that they now have all the negotiation power.

Amend #2 to say: Sometimes, neither does the doctor.

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