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Inviting Cockroaches to the Feast?

Over at “The Security Samurai,” Eric Marvets posts on “How Do I Get My Company To Take Security Seriously? Will Liability Work?” I’ve posted my thoughts on liability (“ Avoiding Liability: An Alternative Route to More Secure Product) and hope to develop those further sometime.

One thing Eric says jumped out at me:

Today I found an article by Marcus Ranum called “Inviting Cockroaches to The Feast” that not only made me stop and think, but completely abandon the idea altogether.

In his article, he asks you to find one instance that cockroaches (lawyers) have made any industry better. Has medical liability made hospitals safer since the 70’s or has it just led to inflated health care costs?

This is the perfect opening to a WSJ article that DM pointed out to me, “Once Seen as Risky, One Group Of Doctors Changes Its Ways:”

Anesthesiologists pay less for malpractice insurance today, in constant dollars, than they did 20 years ago. That’s mainly because some anesthesiologists chose a path many doctors in other specialties did not. Rather than pushing for laws that would protect them against patient lawsuits, these anesthesiologists focused on improving patient safety. Their theory: Less harm to patients would mean fewer lawsuits.

So, if medical liability makes patients safer depends on the practitioners. Given that our industry’s reaction to laws often resembles a that of a small child told that its bath-time, I suspect laws would do little good. (There’s an alternate reaction, which is to see every new law as “COMPELLING” “JUSTIFICATION” for “The same crap” we sold last week. Sometimes, we even add lipstick to it.) But that fault would not lay entirely with the lawmakers.

(The whole article is fascinating, and I’ve added more excerpts if you read after the break.)

Heal Thyself
Once Seen as Risky, One Group
Of Doctors Changes Its Ways
Anesthesiologists Now Offer
Model of How to Improve
Safety, Lower Premiums
Surgeons Are Following Suit
June 21, 2005; Page A1
The rising cost of medical-malpractice insurance has hit many doctors, especially surgeons and obstetricians. But one specialty has largely shielded itself:
Anesthesiologists pay less for malpractice insurance today, in constant dollars, than they did 20 years ago. That’s mainly because some anesthesiologists chose a path many doctors in other specialties did not. Rather than pushing for laws that would protect them against patient lawsuits, these anesthesiologists focused on improving patient safety. Their theory: Less harm to patients would mean fewer lawsuits.
Over the past two decades, anesthesiologists have advocated the use of devices that alert doctors to potentially fatal problems in the operating room. They have helped develop computerized mannequins that simulate real-life surgical crises. And they have pressed for procedures that protect unconscious patients from potential carbon-monoxide poisoning.
All this has helped save lives. Over the past two decades, patient deaths due to anesthesia have declined to one death per 200,000 to 300,000 cases from one for every 5,000 cases, according to studies compiled by the Institute of Medicine, an arm of the National Academies, a leading scientific advisory body.
Malpractice payments involving the nation’s 30,000 anesthesiologists are down, too, and anesthesiologists typically pay some of the smallest malpractice premiums around. That’s a huge change from when they were considered among the riskiest doctors to insure. Nationwide, the average annual premium for anesthesiologists is less than $21,000, according to a survey by the American Society of Anesthesiologists. An obstetrician might pay 10 times that amount, Medical Liability Monitor, an industry newsletter, reports.
In some areas, anesthesiologists can now buy malpractice insurance for as little as $4,300 a year, although premiums ranged as high as more than $56,000, according to the ASA. The ASA survey gave no general explanation for the disparity but did note that premiums were higher for anesthesiologists who had been sued before and for those who perform higher-risk procedures.
A 1999 report by the Institute of Medicine noted that “few professional societies or groups have demonstrated a visible commitment to reducing errors in health care and improving patient safety.” It identified one exception: anesthesiologists.
“If there were any specialty where you said, ‘Show me who has done anything right,’ I would point to the anesthesiologists,” says Neil Kochenour, medical director at the University of Utah Hospitals and Clinics. “They have really made some inroads and some impact.”
Medical errors are a leading cause of death in the U.S., killing between 44,000 and 98,000 Americans each year, according to various studies.
Medical-malpractice insurance rates for some specialties, such as obstetrics and general surgery, have risen in some areas, especially in the past few years, as insurers have reported higher paid losses. The insurance industry and many doctors groups have blamed greedy plaintiffs lawyers and capricious juries for those losses. As a remedy, insurers and many medical organizations have pushed for legislation that caps damage awards and lawyers’ fees. Most states have enacted some form of tort reform.
Many anesthesiologists also support legislative moves to rein in malpractice suits. “Even though we’ve controlled costs, it’s still a big issue for our membership,” says Karen B. Domino, chair of the ASA’s committee on professional liability.
But overall, anesthesiologists have put more emphasis on improving safety. And now, some doctors in other fields are praising them for choosing a different response. Noting the success achieved by anesthesiologists, other doctors — notably surgeons — have aimed more at improving treatment methods. “There’s a lot of room for us to do a better job and decrease liability, not just for patient safety but to reduce liability [premiums],” says F. Dean Griffen, a surgeon in Shreveport, La., who heads the patient-safety and professional-liability committee for the American College of Surgeons. That professional group recently launched a study of cases modeled on one that helped anesthesiologists recognize some of their shortcomings years ago.
For most of its 160-year history, anesthesiology, the practice of rendering a patient unconscious or insensitive to pain, has been fraught with danger. As recently as 30 years ago, doctors in the U.S. still made patients unconscious by administering ether and other flammable gasses. On rare occasions, static electricity sparked explosions. Less rarely, patients asphyxiated during surgery because their breathing tubes mistakenly became disconnected.
In 1982, the ABC news program “20/20” aired a piece on anesthesia-related deaths. “It was a devastating indictment of anesthesia,” recalls Ellison C. Pierce Jr., a retired professor of anesthesiology at Harvard Medical School who is considered by many to be the father of the modern anesthesia-safety movement.
Around the same time, anesthesiologists were getting hit by their second wave of big malpractice-insurance premium increases in a decade. The specialty was then considered among the riskiest to insure, and premiums were often two to three times as high as those other doctors paid. Casey Blitt, a 63-year-old Tucson, Ariz., anesthesiologist who has long been active on patient-safety issues, says his insurance soared to $50,000 a year from $20,000 or less. Dr. Pierce says anesthesiologists were “terrified,” and anxious to do something.
Dr. Pierce at the time was president of the American Society of Anesthesiologists. In 1985, that group provided $100,000 to launch the Anesthesia Patient Safety Foundation. The new foundation was unusual in medicine: a stand-alone organization solely devoted to patient safety. Working closely with the larger ASA, from which it still receives about $400,000 a year, the foundation galvanized safety research and improvement.
Unlike most other medical groups, the foundation admitted as members not only doctors but nurses, insurers and even companies that make products used by anesthesiologists. Industry’s participation initially caused angst over whether the foundation was designed merely to sell machines. But over the years, that concern dissipated, Dr. Pierce says, as company money helped the organization fund important research.
One advance was the development of high-tech mannequins that allow anesthesiologists to practice responses to allergic reactions and other life-threatening situations. Anesthesiologists say the mannequins have also allowed them to become more proficient at performing an emergency procedure akin to a tracheotomy that involves slitting open a clogged airway — something a doctor can’t practice on live patients.
Twenty years ago, little was known about people injured or killed during anesthesia. No U.S. database existed, so anesthesiologists set out to create one. They decided to collect information from insurers on closed malpractice claims, those in which insurers had made a payment or otherwise disposed of the complaint.
Most insurers hesitated to cooperate at first, saying they were worried about patient privacy. One company finally agreed: St. Paul Fire & Marine Insurance Co. in Minnesota said it was concerned about heavy losses it had suffered from anesthesia-related injuries and was eager for anesthesiologists to review claims. Soon, other insurers followed suit.
Anesthesiologists left their practices for days at a time to pore over closed insurance claims. The information they collected was fed into a computer at the University of Washington to create an overall picture of how anesthesia accidents tend to occur. It “was a humbling experience,” recalls Russell T. Wall, an anesthesiology professor at Georgetown University School of Medicine in Washington, D.C. To date, more than 6,400 claims have been analyzed.
In part by analyzing claims, the anesthesiologists were able to document the extent to which patients were dying because of a simple mistake: Anesthesiologists were inserting the patient’s breathing tube down the wrong pipe. Rather than putting it down the trachea, which leads to the lungs, they were accidentally inserting it down the esophagus, which leads to the stomach. The problem was, there was no way to determine quickly whether the tube was in the right pipe. Patients often simply turned blue or their blood turned dark. By then, it was usually too late to save them.
The research contributed to two innovations that between them would all but eliminate death and injury from “intubation” errors. One, known as pulse oximetry, measures the oxygen level in the patient’s blood stream by means of a device that clips onto the patient’s finger. The other, capnography, measures carbon dioxide in a patient’s expelled breath, which helps doctors determine at a glance that a patient is breathing properly.
At the time, though, the new technologies had a drawback, Dr. Pierce says: “It was very hard to get hospitals to buy pulse oximeters and capnographs,” he says. When they were introduced in the 1980s, the two devices together cost about $10,000, according to several anesthesiologists.
That’s where the safety foundation came in. In 1986, at the urging of the foundation, anesthesiologists made the use of pulse oximetry part of the ASA’s basic standards for anesthesia care. A bit later, they added capnography.
Failing to adhere to ASA recommendations can expose hospitals to malpractice liability. By 1990, says Dr. Pierce, almost all American hospitals had pulse oximeters and capnographs.
That change has been accompanied by other less obvious improvements. During surgery, a patient’s body temperature can fall as room-temperature intravenous fluids are infused into the blood. This cooling can cause tissue to die and make the body vulnerable to infection. The safety foundation funded research on the problem in the 1990s, and now care is taken to keep patients warm during surgery, often with specially made blankets that can be heated. Blood and fluid warmers are also used.
Anesthesiologists also have become much better at preventing patient exposure to carbon monoxide. The potentially deadly gas can be an unintended byproduct of the process of cleansing a patient’s exhaled breath of carbon dioxide before the air is recycled back to the patient’s lungs. One simple way to guard against this problem is to make sure that absorbent material in anesthesia machines that filters the recycled air remains moist.
In 1994, the newsletter of the anesthesiologists foundation documented cases in which patients were exposed to high levels of carbon monoxide during surgery on Mondays, presumably after absorbents had spent the weekend drying out. The organization recommended replacing the absorbent material on Monday mornings and several other changes. These are now standard practice, and rates of carbon-monoxide exposure have fallen dramatically.
Anesthesiologists are now focused on alarm bells. Modern anesthesia machines come equipped with audible alarms that sound when certain thresholds, such as oxygen levels, are crossed. But the alarms irritate many surgeons, so some anesthesiologists have turned them off. The foundation has documented 26 alarm-related malpractice claims between 1970 and 2002, or a little more than one a year. Of those, more than 20 resulted in either death or brain damage.
The foundation is pushing to adopt a formal standard that prohibits anesthesiologists from disabling the alarms. “I would not fly on an airplane if the pilot announced all the alarms were being turned off,” says Robert K. Stoelting, the foundation’s current president. “Our patients deserve the same safety net.”
Dr. Stoelting, a retired chair of the anesthesiology department at the Indiana University School of Medicine, runs the foundation from suburban Indianapolis. He has a two-person administrative staff and a relatively modest $1 million annual budget.
As anesthesia fatalities have dropped, so has the percentage of total malpractice suits filed against anesthesiologists. In 1972, according to a recent study by Public Citizen, a consumer-advocacy group in Washington, D.C., anesthesiologists accounted for 7.9% of all medical-malpractice claims, double the proportion of physicians who practiced anesthesiology. Between 1985 and 2001, anesthesiologists accounted for only 3.8% of all claims, roughly comparable to the percentage of doctors who were anesthesiologists.
The size of payments from successful malpractice suits against anesthesiologists also has declined. According to the American Society of Anesthesiologists, the median payment during the 1970s was $332,280. By the 1990s, it had dropped 46%, to $179,010. These amounts are in 2005 dollars and are the most recent figures available.
Claims for serious injuries have become less frequent. In the 1970s, according to the ASA, more than half of anesthesia-malpractice claims involved death or permanent brain injury. In the 1990s, that fell to less than one-third of claims.
Malpractice rates for anesthesiologists have gradually fallen, the ASA says. This year, the average annual premium is $20,572, compared with $32,620 in inflation-adjusted dollars in 1985. That’s a decrease of 37% over 20 years. Malpractice rates are generally set at the beginning of the year.
Anesthesiologists still make mistakes and aren’t immune to recent moves in insurance rates. Their annual inflation-adjusted premiums have climbed 24% since 2002, when they had dipped to an average of $16,559. Insurers say that overall malpractice rates have risen by that amount or more for other specialties during the same period, but reliable nationwide figures aren’t publicly available. As is done in other specialties, anesthesiologists accused of disciplinary problems are referred to state licensing agencies.
Other specialties have noticed how the anesthesiologists have fared. Dr. Griffen of the College of Surgeons says that more surgeons have begun to see a connection between improving patient safety and lowering malpractice premiums. The college’s closed-claims study so far involves about 350 cases, and the group hopes it will grow to 500 this year.
At the University of Utah Hospitals and Clinics, Dr. Kochenour says his institution has tried to emulate the anesthesiologists by concentrating more on identifying systemic errors and less on individual blame. But these efforts run headlong into thinking drummed into physicians since medical school, he says. “I don’t think physicians are very good systems thinkers, by and large,” he says. Many, especially surgeons, prize their independence, he says, and that makes it hard to achieve the kind of cooperation necessary to reduce errors.

3 comments on "Inviting Cockroaches to the Feast?"

  • John Kelsey says:

    I think some of the improvement may have been due to the nature of the errors they were making–a lot of their fixes amounted to adding some simple gadget (like the blood-oxygen sensor (aka red light clipped to your finger) to catch when they stuck the breathing tube into your stomach.) I wonder whether errors in, say, cardiac surgery would be as accessible to these technical fixes. And more to the point, I wonder whether security flaws could be efficiently fixed, or whether closing the easy holes would just make the attackers move on to the slightly less easy holes….

  • Dr. P says:

    This article presents a well-reasoned argument for the kind of self-analysis that much of the medical profession is in dire need of. This I certainly agree with.
    However, to-date, I have seen no rational argument presented by insurance industry spokesmen for the obvious disparity between med malpractice claims as a whole and the average med mal premiums. Here I believe that the idea of privacy law has certainly shielded that industry from analysis. How can there be appropriate oversight into the fairness of premiums when we, as a public are not allowed to know the outcomes of many lawsuits or the overheads incurred by the insurance industry?
    This I feel is the other half of the equation that must be examined. The insurers are, after all, in an agency relationship with doctors. Are they spending our money wisely?

  • Adam says:

    Thanks for your comment!
    Could you explain “the obvious disparity between med malpractice claims as a whole and the average med mal premiums?” I don’t know enough to see the “obvious disparity.”
    I agree with you, that we need to have insight into what’s happening, and we also need to balance that with not slinging around irrelevant portions of people’s private medical histories.

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