It’s a different world these days in healthcare. Organizations of all kinds are trying to figure out how to deliver better care while making the finances work with entirely new payment models. We saw this most recently in the news that UnitedHealth Group is dropping Envision Healthcare emergency room physicians from its network because the two sides couldn’t come to an agreement on reimbursement. Notably, UnitedHealth wants its contracts to operate on value-based models, giving physicians “the opportunity to earn additional reimbursement based on the value they bring to our customers.”

These discussions, and the coverage of them, tend to focus on the business angles of value-based care growing pains, along with implications for the system as a whole. At Health:Further, though, we’re always interested to also understand how macro trends affect individuals. For that reason, we were intrigued when an emergency care physician (outside Health:Further/Briovation) pointed to medical malpractice as a critical piece of the shift to value-based care, not because of the systemic implications of lawsuits but because of the damage the mere threat of a lawsuit can do to individual physicians. According to him, there’s a gap between the financial imperatives and the personal effect certain value-based care initiatives have on clinicians.

Our source, who asked not to be identified to avoid the perception of picking a fight with administrative colleagues, spent roughly two decades working in emergency rooms and urgent care settings. He has seen firsthand the tension between “evidence-based care” and population health, and on-the-ground decision making in critical situations. From the beginning, he was clear that the goals of value-based care and population health are good. It’s figuring out how to do it well that we’re still figuring out.

The issue comes down to statistics. If a test comes back negative 95% of the time, the odds are that you can reduce the number of tests ordered without too much risk of missing something. But, if you’re a patient in that 5%, or a clinician treating someone in the 5%, the consequences of missing a positive result could be catastrophic. Take head CTs, for example.

“A common complaint coming into the emergency room would be a head injury. One of the key questions an ER physician will have to ask is, “should I get a head CT? […] There’s a high proportion of those tests are going to come back normal, without a bleed.”

In some cases, the decision to order a CT is obvious. In others, say, when the fall wasn’t witnessed and the patient didn’t lose consciousness, it’s more of a judgement call.  And like everything in life, it’s the gray areas that complicate everything. “Here’s the problem that gets into the malpractice. In value-base care, there could be a push that 95% of these head CTs are normal, therefore we are going to reimburse you based on [doing fewer] head CTs. And in a population, that is a very reasonable goal.”

It makes sense when you look at the numbers. But if you’re the physician? “Even if you’re […] the best clinical doctor in the world, your exam and your history will not be perfect. So, if you elect to order 100 fewer CTs,  you’re going to miss one bleed a year.” That’s obviously bad for the patient and, “there’s a good chance something like the bleed will lead to malpractice litigation.”

One might think that the threat of litigation would weight heavily on the provider organization as well as the physician. And of course no risk-management lawyer wants to see a lawsuit come across the desk. But according to this doctor, the math from a value-based approach mitigates some of the financial pain: “To the employer, it’s a financial risk. ‘Hey, you know, if we have to settle one lawsuit out of a thousand head CTs, but we’re reducing the cost of head CTs by one or two million dollars…’ from the manager’s point of view, that’s a good deal.”

Lawsuits also affect individual people much differently than they do organizations. Human emotions and all that. “Malpractice is not just an economic decision, it’s a highly emotionally charged thing that’ll affect you for years to come. Even the threat of one.” That threat plays into the risk calculus: “For the doctor, with a patient in front of him making these subtle decisions, part of that decision is going to be, “this could wipe me out financially […] it’s unlikely, but it’s there.”

When you think about it, the odds on a lawsuit look similar to the odds on a head CT. As the physician we spoke with said, you’re probably not going to be wrecked financially in the same way that you’re probably not going to have a catastrophic head bleed on the scan. But it could happen, and “could” is very powerful.

Aside from the finances, there are other effects to legal action. As an early 2018 paper in New England Journal of Medicine put it, “Physicians can insure against indemnity payments through malpractice insurance, but they cannot insure against the indirect costs of litigation, such as time, stress, added work, and reputational damage.”

Even if a physician doesn’t lose a massive lawsuit, there’s a high chance of being involved in litigation at some point, which only adds to the stress. According to that same NEJM paper, which looked at data from 1991-2005, “7.4% of all physicians had a malpractice claim” each year, “with 1.6% having a claim leading to payment.” Importantly, “It was estimated that by the age of 65 years, 75% of physicians in low-risk specialties had faced a malpractice claim, as compared with 99% of physicians in high-risk specialties.”

The American Medical Association presented related results in a policy research briefing published in 2017. Survey results showed that just over half (51.7%) of emergency medicine physicians of any age have been sued, with those over 55 almost twice as likely to have had a claim made against them.

Bring all this together, and here’s what the decision process for treating a patient looks like according to the ER physician we spoke with:

  1. “Am I going to miss something that’s life-threatening?”
  2. “Do I have the right diagnosis?”
  3. “What is the cost to the healthcare organization?”

What, then, is the solution? How do healthcare providers hit all the goals of the quadruple aim? Because remember, that fourth point in the quadruple aim is reducing clinician burnout. Medical malpractice is one contributing factor to burnout and MDs leaving clinical practice.

The doctor we spoke with suggested four things, none of which are particularly new:

  1. Caps on non-economic damages
  2. Shifting some of the legal process from a courtroom to arbitration
  3. Better patient education
  4. Better communication between clinicians and patients

In addition, negotiating reduced rates for tests could help. (Note that this is separate from physician services, like those at issue with Envision/UnitedHealth.)  If the cost of a head CT drops from $1000 to $400 (the current Healthcare Bluebook fair price in Nashville is $442), the payer can realize savings while the physician can continue to order tests and avoid missing that one bleed. In a value-based system, where cost is a key metric, this could serve as something of an intermediate step.

Finally, says our interviewee, we need better support for clinicians who are sued. “They’re not talked about. There’s no support network for lawsuits or malpractice.”

As with any new model, the growing pains of value-based care will continue. The good news is that the goals of better patient outcomes at lower costs are consistent across the healthcare system. Now, it’s aligning the processes and the incentives to keep costs down while letting clinicians do their best work.

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