The Vitals - November 2014
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Caps on Noneconomic Damages Effectively Lower Malpractice Payout
LOS ANGELES – Do physicians benefit by living in states with caps on noneconomic damages that can be awarded in malpractice cases?
For those facing the ordeal of a malpractice lawsuit, the answer is “Yes,” according to a new study. The research, conducted by researchers from the University of Southern California in Los Angeles, the RAND Corp., and Harvard Medical School in Boston, was reported online recently by the journal Health Affairs.
Average payments were reduced 15% compared to no cap and a $250,000 cap reduced average payments by 20%, according to the report. No effect was seen with a less restrictive $500,000 cap on such damages as pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other non-pecuniary injury. Most states have limits on malpractice payments, although the specific vary widely.
The results also showed variances by medical specialty, with the largest effect on payouts by pediatricians and the smallest for claims related to surgical subspecialties and ophthalmologists.
For the study, the authors analyzed a national sample of malpractice claims from1985-2010, merging that information with information on state liability reforms. One comparison looked at how average payments in 10 different specialty categories differed according to the restrictiveness of the cap.
“Our study is … relevant to ongoing policy debates about the size of noneconomic damages caps,” the article notes.
The authors predict that California’s proposed Proposition 46, which is on the Nov. 4 ballot and would raise the cap on medical malpractice payments for noneconomic damages from $250,000 to $1.1 million, would have a detrimental effect on payouts by medical professionals. “Our findings suggest that it would lead to about a 20% increase in average indemnity payments, with larger increases in obstetrics and in pediatrics,” they write.
The American Tort Reform Association (ATRA), an advocacy group that supports a $250,000 limit on the award of noneconomic damages, maintains that trial lawyers’ arguments against limiting noneconomic damages – essentially, that juries can determine on a case-by-case basis how best to compensate a plaintiff for harm suffered – “fails to address the difference between noneconomic damages and economic damages, and fails to take into account the intangibility of noneconomic damages awards.”
Limits on noneconomic damages do not affect the amount a plaintiff can recover for economic damages, which include past and future medical bills, expected lost wages, and other tangible damages, ATRA points out.
Good Contract Key to Avoiding Vendor Lock-Out of Medical Records
PRESQUE ISLE, ME – When the Office of the National Coordinator for Health Information Technology (ONC) issued contracting guidelines and a checklist for electronic health record (EHR) vendor selection through its National Learning Consortium, a key piece of advice appeared in the first section: The contract with a medical practice “should spell out what happens in the event of default by either party and should be as evenly weighted as can be possibly negotiated.”
The consequence of not doing that – or in choosing a vendor who fails to abide by the contract -- has been illustrated by some recent disputes in Maine and Wisconsin.
According to The Boston Globe, the medical records vendor for a clinic, Full Circle Health Care in Presque Isle, ME, blocked access to medical histories on its 4,000 patients.
That vendor, CompuGroup, a German health technology company with U.S. offices in Boston, delivered an ultimatum through e-mail: Until Full Circle Health Care paid $20,000 in overdue charges, the electronic health records would remain locked. When the newspaper asked about it, the company compared the situation to a utility customer who stops paying bills.
“I’m incredulous they think it is OK to hold us hostage like that,’’ E. Victoria Grover, PA-C, who owns and operates Full Circle, told the Globe.
Grover said the practice with 10 employees stopped paying CompuGroup $2,000 in monthly fees about 10 months before access to medical records were blocked. She maintained, however, that the action came after months of bitter negotiations over increased and unexpected maintenance fees and charges for never-delivered hardware.
Even though she hired another electronic health records vendor this year, the practice’s old records controlled by CompuGroup can’t be moved into the new system, Grover said.
Now, the Office of Civil Rights in the U.S. Department of Health and Human Services says it will look into the matter.
Disputes such as these are rare but not unheard of. In 2013, a federal judge in Wisconsin refused to grant a restraining order sought by the medical practice in Milwaukee Health Services Inc. v. Business Computer Applications Inc., noting that the records would be unfrozen as soon as the bill was paid. In the Milwaukee case, the providers had filed an affidavit saying that some gravely ill patients needed their medical records.
Part of the complication for Full Circle in Maine is that its electronic medical system initially was purchased in 2010 from HealthPort, a Georgia-based company, but the vendor was sold a few months later to the German company, which changed the fee schedules, according to the Boston Globe report.
So how can medical practices avoid these problems? The answer, according to the ONC, is all in the negotiating process.
“The contract should spell out who owns the data (clinic should have complete data ownership) and that the data will be returned in a nonproprietary form (standard, interoperable) should the agreement between the two parties be terminated for any reason,” according to guidelines.
Federal officials urge clinics to focus on the duration and termination clauses to make sure “a practice should be able to ‘free’ itself from this with relatively little organizational pain. (No handcuffs or shackles.)”
In addition, the guidelines recommend, physicians practices should anticipate the different ways a vendor could terminate an agreement and create contingency plans.
Most Physicians Report Being Overextended, Unable to Add to Patient Load
COLUMBIA, SC – Physicians whose practices are at full capacity or even over-extended are not alone. Nor are those who struggle with government regulations, paperwork and their own morale.
According to a survey of 20,000 physicians released this fall by The Physicians Foundation, 81% of respondents said they were either over-extended or at full capacity, with only 19% reporting that they had enough time to see more patients.
In addition, 44% of the doctors surveyed said they were planning on changes that would limit patient access to their services, including cutting back on the number of patients seen, retiring, working part-time, closing their practice to new patients or seeking non-clinical jobs.
Every two years, The Physicians Foundation, a non-profit healthcare advocacy group, conducts a national survey of physicians on professional morale, doctor shortages, Medicare / Medicaid participate rates, electronic medical records patterns and other issues.
One of the most significant changes documented by the survey relates to practice ownership, with only 17% of physician respondents saying they are in solo practice, down from 25% in 2012. At the same time, 53% of physicians describe themselves as hospital or medical group employees, up from 44% in 2012 and 38% in 2008. Only 35% of physicians describe themselves as independent practice owners, meanwhile, down from 49% in 2012 and 62% in 2008.
Another change is that 7% of physicians now practice some form of direct pay/concierge medicine, with 13% indicating they are planning to transition in whole or in part to this type of practice. The trend is especially strong among physicians 45 or younger; 17% of those practitioners indicate they will transition to direct pay/concierge practice.
While morale remains a troubling issue, it seems to be improving a bit, possibly because of the changing demographics in medicine. Younger physicians, female physicians, employed physicians and primary care physicians tend to be more positive about the current medical practice environment than are older physicians, male physicians, medical specialists and practice owners.
The survey found that 29% of physicians would not choose medicine if they had their careers to do over, a decrease from 35% in 2012. In addition 44% of physicians describe their morale and their feelings about the current state of the medical profession as positive, an increase from 32% in 2012, and 50% of physicians would recommend medicine as a career to their children or other young people, an increase from 42% in 2012 and 40% in 2008.
Still, 69% of physicians said that their clinical autonomy is sometimes or often limited and their decisions compromised.
Government programs and regulations appear to be the greatest irritant for practicing physicians, with 46% giving the Affordable Care Act a failing grade of D or F. Just 25% gave it an A or B.
While 85% of physicians have adopted electronic medical records (EMR), up from 69% in 2012, 46% complain that the products have detracted from their efficiency, while only 24% say EMRs have improved their efficiency. In fact, the survey indicated that physicians spend 20% of their time on non-clinical paperwork.
Half of the respondents said that implementation of ICD-10, mandated by 2015, will cause severe administrative problems in their practices.
Doing Less, Not More, About Common Patient Complaints
INDIANAPOLIS – Common symptoms such as fatigue and pain don’t have a definitive disease-based explanation a third of the time, and a new review suggests that physicians consider doing less in the initial visit, only responding with diagnostic tests and imaging studies if the symptoms persist after a month or so.
About half of all primary care office visits involve complaints without clear-cut causes, according to the research published recently in the Annals of Internal Medicine. The review was based on analysis of studies on common symptoms plus a quarter-century of patient care and research related to symptom management.
"Only if there are red flags for serious problems like cardiovascular disease or cancer should the doctor typically do more at the initial visit. Testing can be reserved until a follow-up appointment for the subgroup of patients whose symptoms haven't diminished," said author Kurt Kroenke, MD, a Regenstrief Institute research scientist, Chancellor's Professor at the IU School of Medicine and an investigator at the Veterans Affairs Center for Health Information and Communication.
Kroenke noted that patients often come to see internal medicine and primary care physicians because they suffer from one or more common symptoms of unknown cause such as back pain, fatigue or sleep issues. "They may be depressed or anxious. These patients want answers,” he added.
To provide answers, physicians typically complete a medical history and do a physical examination focused on the symptoms. While diagnostic tests and imaging studies often are ordered at the initial visit, such tests are often an unnecessary expense, Kroenke said. In fact, according to the study, three-quarters of the information needed for diagnosis can be pulled from the patient's medical history.
"But it's counterproductive for the doctor to say to the patient that they shouldn't worry as everything is normal," he conceded. "Studies that we and others have conducted show that there is an unmet patient need to know what a symptom is and how long it might last."
Instead, Kroenke’s article recommends that the physician talk with the patient about how symptoms are common, may improve gradually, often are responsive to symptom-specific treatments including self-management and are not cause for concern about 75% of the time. The patient should be advised to return in four to six weeks if symptoms don't improve, at which point, tests should be conducted.
Here is Kroenke’s reasoning on taking a wait-and-see approach in many cases:
- At least one-third of common symptoms do not have a clear-cut disease-based explanation.
- A patient's medical history alone yields 75% of diagnostic information.
- Physical and psychological symptoms commonly co-occur.
- Most patients have multiple symptoms rather than a single symptom.
- Symptoms become chronic or recurrent in 20 to 25% of patients.
- Serious causes that are not apparent after initial evaluation seldom emerge later.
- Some medications and behavioral interventions are effective for multiple types of symptoms.
- Measuring treatment response with valid scales can be helpful.
- Communication has therapeutic value, including providing an explanation and likely prognosis but not "normalizing" the symptom.
"Changing how doctors treat symptoms regardless of underlying cause won't be easy," he said. "Physicians are better reimbursed for tests and procedures than for taking medical histories and having conversations with patients. As we evaluate what is best for patients with common symptoms, we also need to reconsider how health care dollars are allocated."