Response to Peter Orszag's New York Times Op-Ed

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For Immediate Release: October 21, 2010

Contact: Ray De Lorenzi
202-965-3500 ext. 8369
media.replies@justice.org

Response to Peter Orszag's New York Times Op-Ed

Peter Orszag writes an op-ed in today’s New York Times about the need to adopt evidence-based guidelines as part of medical malpractice “reform.”  While he is certainly a well-respected and thoughtful economist, he falls short in this op-ed when examining legal issues that affect the health and well-being of patients injured by medical negligence.  A few points to consider:

The creation of immunity guidelines is entirely impractical.  Throughout the health care debate, opponents of the bill (including many physician groups) blasted the idea of guidelines to practice medicine.  You can’t have it both ways.  Guidelines take forever to approve, can be conflicting, and may no longer be the best practice once a lengthy vetting process concludes.  They can also vary greatly from what is the accepted community standard of care.  Just look at the debate that erupted about new mammogram guidelines: if a physician feels that one is warranted, but the guideline says no, should the doctor do what’s in the best interest of the patient, or what a Washington bureaucrat demands? 

Not once in his column does he mention the epidemic of medical errors that plagues our health care system.  According to the Institute of Medicine, as many as 98,000 people die every year from preventable medical errors, costing $29 billion annually.  Just this week, the Archives of Surgery released a new study showing the astounding prevalence of wrong-side, wrong-site, and wrong-patient surgeries. 

Physicians already have significant immunity when negligence injures patients.  Orszag fails to point out that over half the states have severe caps, meaning patients often have no recourse at all.  There is also no evidence that health care costs are lower in those states; in fact, Texas has some of the highest costs nationally and is often cited as a “model” by tort reform proponents.  Doctors who practice the standard of care can already use this as a defense in malpractice cases, buttressed by expert witnesses.  Using inflexible guidelines for purposes of immunity just goes too far, especially considering the burden already placed on injured patients when seeking recourse.  If a physician does not follow these guidelines, should that automatically mean that negligence has occurred?

Orszag has said multiple times that tort reform will not reduce health care costs.  Throughout the health care debate, Orszag debunked the notion that changes to the malpractice system would produce any significant savings, echoing much of the academic literature on the topic (interestingly, his column today says that this very same literature “plays down the role of medical liability laws in driving up health care costs”).

  • “The academic literature on this question [effect of medical malpractice on costs] is not as compelling…as the view among doctors would suggest.” (CSPAN, 6/9/09)
  • “Orszag said limits on medical malpractice awards — which many Republicans favor, but are not in the bills — would do little to reduce health care costs.” (AP, 12/2/09)

Physicians have already stated that their knowledge and expertise, not Washington bureaucrat guideline-makers, should guide how medicine is practiced.  The AMA has even acknowledged that there is often a conflict of interests with professional medical associations that write guidelines and the pharmaceutical and device makers that fund them.  A much-cited 1999 JAMA study found that physicians don’t follow guidelines for an array of reasons, and the threat of liability is very low on the list.

The focus should be on patient safety and reducing the number of preventable medical errors that occur annually, not providing even more immunity to wrongdoers when negligence occurs.

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