“The larger threat posed by American medicine is that more and more of us are being drawn into the system not because of an epidemic of disease, but because of an epidemic of diagnoses. … Medico-legal concerns also drive the epidemic. While failing to make a diagnosis can result in lawsuits, there are no corresponding penalties for overdiagnosis. Thus, the path of least resistance for clinicians is to diagnose liberally — even when we wonder if doing so really helps our patients.” (H. Gilbert Welch, Lisa Schwartz and Steven Woloshin, “What’s Making Us Sick Is an Epidemic of Diagnoses”, New York Times, Jan. 2).

Filed under: medical

Deep in a comment thread on a blog that I shouldn’t be wasting time reading, trial lawyer Lee Tilson writes as an argument against reform “Our imperative should be to reduce medical errors.”

But there’s a very easy way to reduce medical errors: abolish the practice of medicine, and doctors won’t commit medical errors any more.

That clearly isn’t an improvement over the status quo, and this illustrates the flaw in Tilson’s argument: he’s asking the legal system to solve the wrong problem. Better for a legal system with rules that effectively tolerate some more Type I errors if by doing so eliminates even more of the Type II errors from doctors deterred from practicing at all. Society should be happy with a tradeoff of more doctors for somewhat more medical errors if the net result is better medical care for all. At what level of malpractice liability will medical care be optimized? The data indicates the needle has moved too far in favor of liability: reducing liability (say, through caps) improves health-care outcomes such as infant mortality. The deterrent effect of outsized liability on practice more than outweighs the deterrent effect of liability on malpractice. (As I’ve noted at Point of Law, even serious academics make this mistake.)

There are ways to achieve reform without Type I/Type II tradeoffs. Improving the accuracy of the justice system would hypothetically reduce both Type I and Type II errors; this is the principle behind the Common Good health courts proposal. That the trial bar fights so hard against even so much as establishing such courts on an pilot basis shows how much they really care about “medical errors” as opposed to their own pockets.

Filed under: medical