Oh, It’s a Trap Alright… by Pat Conrad MD

The latest issue of Medical Economics had an article about “Defensive medicine versus value-based care.”

The article notes the “waste and inefficiency” of defensive medicine costs whose estimates range from $46 – $178 billion per year, depending on your source. The author correctly notes, “doctors will increasingly be forced to choose between limiting their utilization of health care services to augment income and exposing themselves to legal risk.” In 2019, CMS will replace meaningful use, the Physician Quality Reporting System, and the Value-Based Payment Modifier with the all-unifying Merit-Based Incentive Payment System (MIPS).

MIPS will reimburse physicians based on 1) Quality; 2) Efficiency (cost-controls); 3) meaningful electronic use; 4) “clinical practice improvement activities”, whatever the hell that means. If you score well, you get a little more money. If you don’t, you’ll be penalized.

The article recognizes that the “meager incentives that third-party payers offer to doctors who keep costs down just aren’t enough to offset liability risks.” An average 1% loss of reimbursement isn’t bad enough to give up practicing defensively. Not when “the average physician spends an estimated 11% of an assumed 40-year career with an unresolved, open malpractice claim.”

• A 2015 multi-university study found that higher-spending physicians face fewer malpractice suits. Higher C-section rates correlated with fewer malpractice claims. Defensive medicine is as valid as it is predictable. A cited 2014 RAND Corp. study found in several states that tort reforms raising the negligence threshold did not reduce defensive spending costs.

The article turns to Richard Roberts, MD, JD, and professor at the Wisconsin School of Medicine and Public Health (Shields Up!!). A former attorney, Roberts advocates using the Ottawa rules to evaluate the need for lower extremity x-rays, saying that outside the guidelines the “probability [of] a fracture is virtually zero.” Uh-huh. I choose to rely on the “Pat” scale: when a patient points to an extremity and says “Ow!” I x-ray it.

President-elect of the AAFP John Meigs, MD stays that family docs will have more success eliminating “non-valued adding practices” than the payers will in coming up with new incentives. If that was a subtle way of throwing us under the bus again, then at least Meigs is staying true to his organization’s vision. He suggests that a patient-centered approach will inject more reason into the diagnostic process. Uh-huh.

And now the trap is coming into focus, and I’m embarrassed I didn’t grasp it more quickly.

Meigs urges that moving to value-based care can actually reduce defensive medicine, and here is his shiny, idiotic patient-centered foolishness as the perfect getaway vehicle to flee the lawyers. Meigs tells M.E. that physicians should deal with patients who demand more health care services by communicating more effectively. Really? The first notice of a malpractice lawsuit that I received was extremely effective communication. Dr. Roberts calls down from his public health balcony that “we have to be partners with our patients.” He adds, “You don’t have to be afraid of your patients. If you’re trying to practice medicine by looking over your shoulder all the time, you’re going to hit the wall ahead of you.” Brave words from someone inside the walls of sovereign immunity. As long as I know a patient can sue me for a bad outcome, I will not trust them and will continue to see each of them as a potential adversary. That is corrosive to the soul, but I have to pay the bills like everyone else.

Our bankrupt government will continue to pander to greedy, envious, ignorant voters by squeezing docs to find savings. This will delight patients right up until their doc closes up shop. Private payers will follow suit along HMO/ACO/group savings lines. The trap is that the payers know physicians will keep practicing defensively, thereby allowing them to hand out annual penalties and pay us less. Big Insurance and Big Government will use the malpractice threat as an opportunity to fleece docs even more. The collaborators over at the AAFP will see this ongoing threat as a perfect way to advance the idiocy of quality and PCMH goals, and will keep silent as their non-conformist colleagues have their money stolen.

We thought we were starting to turn the tide against the malpractice industry, but in fact it is gaining new allies eager to pursue their own agendas. The one potential remedy is to go Direct Primary Care, telling the government and other payers to stuff their insulting bonuses and penalties. Free from those burdens, the DPC doc can practice as they and their patients please (and maybe refuse to carry malpractice insurance?).