THE COST OF THE FEAR OF LITIGATION

 

No politician mentions Health Care without first proclaiming that the United States has the best Health Care System in the world. Not true. We may have the best specialty and High-Tech Care, but absent high grade Primary Care (where is my family doctor?) the System struggles. Robust, Comprehensive Procedural Primary Care is the necessary foundation of any successful system of medical practice. But it’s missing.

 

Too often patients complain that their Primary Care doctor does little other than “write prescriptions and refer me!”  It’s true. Procedural practice (removing splinters, giving allergy shots, suturing wounds, lancing an abscess, removing ear wax and an assortment of other measures) is no longer included in the compendium or Primary Practice. This type of  procedural care that can easily be treated in office by a properly trained “family doctor” is being outsourced to specialists at a rate that has crippled the system of medical care and adds 100 to 200 Billion Dollars to the annual cost of Health Care.

 

Fearing litigation too many doctors in Primary Care have abdicated these procedural obligations in favor of referring and that’s what the hue and cry for tort reform is all about.  High Tech Medical specialists although practicing under the same sword generally plow ahead, keep doing what they do best.  How come?  Because Specialists are protected to a great extent by the credentialing process that defines the boundaries of their practice. An obstetrician delivers babies but does not remove lungs; thoracic surgeons may remove lungs but dare not do cardiac by-pass.  By sticking to the confines of their specialties, these doctors may be sued if they have a bad outcome but cannot be accused of trespassing into a specialty in which they have no credentials.

 

Not so in Primary Care because the boundaries of office practice in the  various Specialties has not been defined, their limits not set. A Primary Care doctor can’t be credentialed as “doing a little hematology, some orthopedics, or occasional surgery.   Anybody can lance an abscess. A Surgical Specialist defending a malpractice case about a drained abscess that is followed by complication resulting in hospitalization can answer the question “Doctor when did you get you Specialty Boards In Surgery?”

 

But put the Primary Care doctor in the place of the surgeon:

 

 “Doctor did you every give an allergy shot?”

“yes.”

“Did you ever interpret an electrocardiogram?”

“Yes.”

“Do you generally remove wax from ears, or have you every punctured an ear drum to relieve purulent otitis media?”

“yes”

“Dr. have you ever splinted or taped a severe ankle sprain?”

“Of course”

“Dr. Have you ever performed a Pap Smear?”

“Sure every day.”

Dr. when did you pass your Specialty Board tests and get credentialed in each of these specialties?”

“Oh but they are part of my job. That’s what I do. I am a doctor!”

“Oh really? Ladies and Gentlemen of the Jury we have before us an ‘all-in-one’ doctor, who believes s/he can be all things to all patients; a cardiologist, a surgeon, a gynecologist, an ear nose and throat specialist, an orthopedic doctor without having passed a single test in these specialties---“. 

 

So the natural consequences of litigation threats is for Primary Care doctors to retreat and refer all of the above to respective “specialists” an allergist; a cardiologist an ear nose and throat doctor; an orthopod; a gynecologist, and others, converting a $50 bill into a series of $1,000 dollar bills—because Specialists also wary of malpractice attacks dare not proceed without supplemental laboratory and x-ray studies.  The costs of referrals caused by the fear of possible litigation are exponential.

 

Robust Primary Care Practice is the key to taming the system and its costs but only after Primary Care practice is replicated as consistently from doctor to doctor as the specialties are consistently and uniformly practiced. And only the Federal Government as an employer has the muscle to successfully bring this to pass. The vehicle in which the Federal Government can bring this about is present in the form of a Public Option that President Truman established in the late 1940s and President Johnson deployed in 1967: namely the Primary Care Centers of America.  

 

The Template for re-configuring Primary Care Practice is the “Primary Care Centers of America”.  At present 8000 of them exist throughout the United States each staffed by a Pediatrician, Primary Care doctor, Internist and Gynecologist. That represents a lot of Primary Care. 

 

As Government employees these physicians are protected to a great extent by the FTCA (Federal Tort Claims Act) that designates the office of the Attorney General of the United States as the Defense Attorney, a fact that would discourage frivolous law suits. Doctors employed by the Federal Government, relieved of the FEAR of random and petty litigation that is costly and damaging, would then include many of the Specialty office procedures in their practice of Primary Care, thus significantly reduce the number of costly referrals.

 

100,000 of these Centers throughout the Country could be created at the cost of $300 billion dispensed over a three to five year period. Annual maintenance costs to the government of $3 million each center would be at least halved by the fact that the Centers are entrepreneurial, see patients at fees from zero to infinity according to tax bracket. In other words an optional pay-as-you-go system displaying marketplace predilection. Thus instead of forcing young citizens into the Health Care system, provide them with Assured pay as you go Primary Care. Thus a person recently unemployed would pay lower fees than s/he had heretofore.

 

The advantages:

            The Present Health Care system would remain intact with but  modest changes

            Centers could (perhaps) be established by proclamation and appropriation thus avoiding Congressional conflict

            Assure every citizen or preferably everyone in America) optional but available comprehensive Primary Care Medicine

            Utilization optional

            High Tech Medicine still insured through HMOs

            Term Hospital and catastrophic care insurance becomes available at affordable fees

            Decongest Emergency Rooms (save money)

            Reduce insurance costs for individuals, families and enterprise

            Liability insurance for the Medical Staffs of these Centers would be negotiated per Center by the Federal Government 

            Provide one million or so jobs

 

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