[PLUG-TALK] Malpractice (2)

[Keith Lofstrom]

Keith> When you reward "victims", you create more victims.  

Russell Senior <seniorr at aracnet.com> writes:
> I think the word here is "compensate" rather than "reward".  I don't
> think you'll find many people getting in line to have their operation
> botched for the sake of any reward.

Keith Lofstrom responds:

Not "for the sake of" - but indeed, people would have a far more
healthy attitude towards self-care if the adversarial aspect of 
doctor-patient relationships was removed.  Medicine is a crapshoot.
It is a crapshoot with very good odds, and odds that get better all
the time as medical science improves.  However, people behave as if
the odds were perfect, then blame the system when their own avoidable
stupidity and indifference is what put them in the crosshairs in the
first place.  Most smokers do not die of their habit, but some die early
and horribly.  No doctor made them smoke, and when they advise the
patient to stop they cannot assign outcomes.  High carb consumers risk
diabetes, which can lead to gangrene and death.  Amputations are
preferable to death, but amputations lead to medical errors (tell me,
oh Solomon, how to tell one morbid leg from a slightly less morbid leg
on a diabetic in a busy OR?).  Better not to walk the gangplank, and
that is usually the "victims'" choice, and hardly ever the doctor's. 
Needing a doctor is the second worst thing that can happen to you.

A good illustration is a fellow I see sometimes at science fiction
conventions.  S. is morbidly overweight, with advanced diabetes.
I was having dinner at a Thai restaurant in a group including him,
another friend Laura (also with diabetes, but trim), and two women
that happened to be diabetes researchers at NIH.  Laura was talking
to the researchers about their work, when S. butts in with his
considered opinion that the researchers are incompetent for not coming
up with a cure for diabetes.  This is in between mouthfuls from the
vast heap of white rice on his plate.  When reference is made to his
eating habits as the cause of his diabetes, he goes ballistic.  If
there is a villain in this piece, it is S.;  if there are victims,
it is the researchers who labor hard, in spite of abuse, to help
their friends like Laura, and incidentally help ungrateful,
boorish pigs like S.  

People self-assign risks that they demonize others for.  This is
human nature, and makes for great showboat politics, but it is not
good public policy.  



Keith> Yes, malpractice is a small part of total health care spending.
Keith> So is doctor compensation; perhaps 5% to 10%.  

Russell continues:
> Okay, then don't blame lawyers for driving up health care costs.

Keith Lofstrom responds:

I am disaggregating, and explaining how lawyers cause costs to be
misallocated.  You are aggregating, and confusing yourself.  Why stop
with the granfalloon (artificial aggregate) "health care cost" when
you can use a bigger aggregate of "total bioactivity", including
food, raising young, etc?  Or the whole economy?  Or all of human
activity since the beginning of time?  Throw enough irrelevancies
into the pot, and you can make malpractice look pretty darn small.

Doctors (real people, real individuals, who I know) who have been
driven out of business by lawsuits and malpractice premiums, and
the patients that are under-served because of it, are not the "health
care industry".   They are individuals who are getting crushed by
the "big picture" people who can't be bothered with the damage their
big picture does,  because it doesn't affect them.

Yes, there are health care executives that earn obscene salaries.  A
handful even earn as much money as North Carolina ambulance chasers.
If you don't like those executives and their empires, you might start
by asking who smashes up the small and medium medical businesses out
of whose bankrupt carcasses they assemble their empires?  

You don't get that data at 10,000 feet, looking at the "health care
industry".  Aggregate data reflects things that can be counted in
bulk.  When you start thinking that way, empires are inevitable,
and individuals are trampled.


Russell continues:
> Maybe all the direct responsibility gets concentrated on the
> physicians, but the normal thing to do in these cases is treat it as a
> cost of doing business and build it into your rates. 
>
> If the physician
> isn't being compensated adequately to cover their costs then they
> should charge more.  Or if the malpractice insurance rates are
> unreasonable, then get together with colleagues and form your own risk
> pool. 

Keith Lofstrom responds:

Big words from someone who isn't there.  Let's analogize back to your
own home turf.  Howzabout lets lump all the programmers together into
the "software industry", and charge *YOU PERSONALLY* big malpractice
premiums to pay for the lawsuits brought by everyone who gets a
computer virus on their Windoze machine?  You can just raise your
rates, right?  It is all just a part of doing business, right?  

You would not put up with that for a second.  You are an individual
working with open source, you know you are working to make things
better, and if your clients get computer viruses because they have
not followed your advice and ditched their remaining Windoze
machines, then it is their fault, right?   But by your "cost of
doing business", punish-by-outcome-rather-than-by-contribution
model, you ought to be punished for your client's decisions.

Should people be compensated for suffering from ( and spreading )
computer viruses?   Perhaps.  Who would pay that compensation? 
Recent history demonstrates that it will NOT be a very large
software company with a huge legal department.  It will be YOU,
bucko, because you can't control who the legal target will be and
they can.  

So please, please, show just a little bit of the compassion and
sound judgment that I know you have, exercise just a little of the
observation skills you demonstrate in other areas, and take a look at
the real data, at ground level, not the aggregated foolishness that
the empire builders are spoon feeding you for their own selfish ends.

Doctors no more get to choose their rates than you do.  They don't
operate as a "class".  If they speak up, they get paid 0% rather
than 40% by insurance companies, and can get sued (most contracts
have a gag clause).  The way to increase their compensation is by
leaving practice to do something else.  This reduces the supply of
doctors, which typically means you wait longer for an appointment,
and see less of the doctor when you do.  Insurance pays per visit,
so if you have four things wrong, expect to make four visits.  And
you, by your choice of insurance companies, select this behavior.


You don't like medical errors.  Something Must Be Done (that is,
*somebody should be punished* ).  Do you attack the major source
of the error, uninformed and non-compliant patients?  No, too
close to home.  Do you attack the next biggest source of error?
Insurance as a means of paying for most medicine?  No, you WANT
to play the lottery.  Who's left?  Well, there seem to be a lot of
hurt people around those folks in the white coats over there.  Must
be THEIR fault.  Ruin their lives, make it hurt, but call it 
"compensation" so you don't feel like a shit-heel.  

Screw the euphemisms.  You can't "compensate" a person whose life is
ruined.  No pile of money, no matter how high, is going to return
things to the pre-existing state.  Life is a series of misjudgments
ending in death.  Some are luckier than others.  It is not our job
to cripple the whole in the hopes that this will cheer up the wounded;
this is neurosis, plain and simple, and whoever taught it to you should
be ignored.

A friend of mine once lectured me about the John Rawls "Theory of
Justice."  That is one label for the "compensation" process you are
referring to.  Rawls claims that justice demands that we should 
compensate life's victims, so from behind a veil of ignorance we
would not choose one life over another.  This falls apart on three
observations:  (1)  People at all economic and health levels make
choices at variance with this leveling.  Lotteries and wars are two
obvious examples.  Far more appear when you learn more about practical
versus theoretical cause and effect.  (2) Many victims contribute to
their own suffering.  (3) We are forbidden to talk about item 2,
because we lose the valuable tool of deception in our struggle for
supremacy.  These all have their roots in our evolutionary past,
and are part of life here on the Planet of the Angry Monkeys.

Who is going to take care of the "victims" of medical mistakes? 
The same people that take care of all the other victims of life. 
Doctors.  Their job is not eased by adding to their problems.
You can help them.  Or you can be indifferent.  But please,
don't be cruel.  And don't call cruelty "compensation".


Russell continues:
> Business types will always want you to be their slave.  Don't
> let them.  This is normal piece-of-the-pie tug-of-war.  Physicians are
> getting screwed.  Boo-hoo.  So are lots of people.  But don't blame
> the people who _really_ get screwed.  Blame the people doing the
> screwing.  Blame the people that constructed the system by which the
> only compensation for medical errors is through malpractice claims.

Keith Lofstrom responds:

Blame is your word.  I would prefer not to blame.  But if I blame
anything, it is the attitude that the uninformed and uninvolved
have the right to tell the informed and involved how to do their
jobs.  If you want to look at the people who make this happen, you
can observe one in the mirror in the morning while you shave, as
to some extent can I.  I am writing this in an attempt to deconstruct
that system of "compensation" you talk about, because it is a wicked
insanity to proceed as if life was a matter of compensation.

My wife can be sued for $20 million dollars because her admitted
imperfection could be result in one of the many bad decisions that
leads to a patient's death.  However, if she exercises her gumption 
and her skills and her long hours of work and her sacrifices of many of
the things others feel entitled to ( children, homes, vacations, new
cars etc.), and makes a courageous and unpopular decision that SAVES
a person's life (as she did yesterday, and as he has done hundreds of
times), can she expect to be PAID $20 million dollars for it?

Let's look at "compensation" for a moment:

Saving a life as a doctor:   $500 to $5K ( annual take-home / lives saved )
Not saving life as a doctor: $0 to -$20M (or more)
Quitting medicine:  $50K/yr to $50M/yr

As a business decision, the person that saves your life would be advised
to move on to something else and leave you to rot.  That is the financial
decision you are supporting when you force others to pay "compensation"
and hold them to a standard you do not accept for yourself.  

The bottom line is, you will die.  YOU WILL DIE.  Hard to accept, but it
is so.  Doctors work hard to delay that, because they love people and
hate death.  Most people are too lazy and filled with denial to make the
commitments and sacrifices that doctors do.  You could do it, you are
smart enough and strong enough and most times noble enough.  So why the
HELL are you standing outside, blathering anchor-less platitudes and
creating obstacles for the people doing the work you shirk?

My wife is at the hospital right now, where she just might save another
life.  She would much rather be outside hiking on this beautiful day;
we cut short our vacation so she could be there now.  I am covering her
back, which is admittedly small potatoes in comparison.   But what the
heck are you doing right now?  How are YOU compensating life's victims?


Russell continues:
> If you think it is the fault of dumb juries, support education of
> critical thinking skills so jury pools aren't filled with dumb people.

Keith Lofstrom responds:

You are the one that mentions "dumb juries".  My psychiatrist calls
statements involving phrases like "you think" *mind reading*, and labels
them errors in thinking.  She is correct.  I don't think juries are
dumb.  I think they do what they are told, by the likes of you and me,
through the words we write, the expectations we create, and the laws
we pass.

Education of critical thinking skills is what I am doing right now. 
You are resistant, but I think you will eventually wake up.  If you
don't believe me, you should collect your own data.  Start by talking
to a doctor.  Read some medical journals.  If you really want to
learn something, volunteer at a hospital or a nursing home.  If you
have aging parents and participate in their care (rather than just
kvetch about it), you will learn a shit-load pretty quick.


Russell continues:
> If you think it is the fault of juries filled with poor people who
> sympathize with the poor patient, support policies that eliminate
> poorness.  Don't "mask the symptom" by legislatively waving your hand
> and pretending medical errors and their consequences don't exist
> anymore.

Keith Lofstrom responds:

Fault, fault, fault.  You have a weapon, and you need to choose a
target.  You are better than that.

Sympathy is not taking money from stranger X and giving it to stranger
Y.  Sympathy is opening your own wallet, and giving money that you would
really rather spend on a new hard drive.  Sympathy is volunteering.  
Sympathy is getting medical training, and re-orienting your life towards
healing others.  Sympathy is costly, and not for wusses.

It is one of the great evils of our time that we listen to politicians,
left or right, who tell us that "sympathy" is exercised through attacking
others, or that attacks can be relabeled "liberation" or "compensation"
and that this somehow makes it OK.   Angry little monkeys that we are,
we don't check their lies against reality, and fling a little more shit
every time they ring the bell.  Doesn't make the place smell any better.

Protect the words you use to think with.  Don't let others co-opt
them.  You are already savvy about the misuse of  "user friendly",
"free market", "idea ownership", "national security", "God's will",
and a bunch of other frequently misused word triggers;  wake up
to the misuse of "sympathy" and "compensation".  


Russell continues:
> But if the total fraction of health care costs due to malpractice is
> just 2%, and they are flat or declining, then something *else* is
> responsible for 20% a year medical insurance inflation... like looting
> by the insurance companies, excessive gatekeeping costs, etc.

Keith Lofstrom responds:

A big part of "something else" is that the age-adjusted death rate
is going down by about 6% a year (an aggregate, for folks like my mom
the death rate has plummeted).  Older people cost more to keep alive,
and you and I pay for it (and I think it is the right thing to do). 
New medical discoveries cost money, and we keep buying them.  Families
make costly end-of-life decisions for their dying elders.  One
aggregate number that might amuse you is that 50% of health care money
is spent on the last two weeks of life.  (Do you have a living will?
Advanced directives? Would you trade your kid's college education for
another two weeks on the ventilator for granny?)

Another big part is the supply curve for insurance - more people are
paying for more health care via insurance than they did in the past. 
Insurance is not something that gets more efficient as it gets bigger.

There are components of that cost that are sailing out of control that
we might agree to hate.  The formation of giant medical corporations
is one;  the business logic says that large corporations are better
able to defend themselves from lawsuits than small ones ("cost of
business" versus "survival").  Lobbying (due to the politicization of
medicine), crony-ism, all sorts of behaviors are enhanced by size.

Historically, the cure has been a free market;  while this theoretically
benefits the dinosaurs, it is far more beneficial to the more agile
little guys that create the new business models that eat the big guys
alive.   This is bad for the trial lawyers (little guys are expensive
to sue), bad for the politicians (little guys are hard to tax), bad
for the bureaucrats (little guys are hard to aggregate and control),
and bad for the media (when they badmouth the little guys, audiences
don't know who they are talking about).  The bunco artists in Congress
locate a weak company that hasn't bribed them lately,  pontificate
about Big Evil Corporations, proclaim Something Must Be Done, then
pass legislation that favors other companies that keep the contributions
flowing, while screwing the little guys that are the real competitors. 
The uninvolved stand back, applaud their courageous politicians, and
attribute the failure of this whole sorry process to the machinations
of the next Big Evil Corporation.  It would be laughable if it wasn't
for all the real lives it destroys.

If you want to favor little businesses, find out what hurts them and
remove it.  Find out what helps them and add to it.   If you want to
reduce the number of big businesses, remove the legislation that
favors them in relative terms (most regulation as currently written). 
The dinosaurs will die a natural death, and the little businesses will
wax healthy on dinosaur meat.  Don't try poisoning the dinosaurs;  
they are too stupid to die, and the little guys are too hungry to
avoid your poison.

If YOU PERSONALLY, actually wanted to do something to help little 
businesses and small medicine, you might consider investing some time
in the SQL-Clinic software that Freegeek is developing.  This badly
needs support for HIPPA compliance, and data integrity and security
are a big part of that.  Those are among your personal strengths.  If
that software was further along, I could get it into a lot of small
clinics in the Portland area, there would be good consulting money
in it for many of us, and it would replace a lot of big ticket
Windoze crap.  How about it?  


Russell continues:
> Medical malpractice may very well be a significant and important issue
> to physicians, but as a health care cost it is a red-herring, waved
> around by the Republicans to distract voters and to enable continued
> looting.

Keith Lofstrom responds:

Russell, you are smarter than that.  When you talk that way, you could
be just like Michael Robinson, with a few symbols (Republican/Democrat)
swapped.  Stop with the aggregation nonsense, and think about PEOPLE
for a moment.  They come one each, and the ax you are swinging hurts
them.  Unlike Michael, you are a nicer and saner person than that.

I really like you when you engage your brain.  Not very much when
you parrot the media and politicians and ignore real people.  Please
observe some real data yourself, and construct your own statistics. 
We will both appreciate the result.

Keith

-- 
Keith Lofstrom           keithl at ieee.org         Voice (503)-520-1993
KLIC --- Keith Lofstrom Integrated Circuits --- "Your Ideas in Silicon"
Design Contracting in Bipolar and CMOS - Analog, Digital, and Scan ICs