So, the lawyers lost a round this week. Makes a body feel pretty good, honestly.
The New England Journal of Medicine, always my go-to journal of record, published a research piece this week (click the prior link, or find it at N Engl J Med 2011; 364:1243-1250) in which the investigators compared nursing homes which were sued often versus those which were sued infrequently. The question was whether the nursing homes which were sued more often had objective indications of poor quality based on national data sets. The short answer: no. Being sued had no correlation to your quality data; homes which had good quality were sued just as often (pretty much; there was *some* correlation, but not much). One of the most telling lines in the study was this: “Nursing homes with the best…records [top 10%] had a 40% annual risk of being sued, compared with a 47% risk [of being sued] among nursing homes with the worst…records [bottom 10%].”
Now this may sound like a success story in some ways; I wouldn’t blame you for thinking so. The lesson I take from it, though, is that litigation (which is expensive and heartbreaking for everyone except the lawyers) is a poor discriminator of who is good and who is not. And I personally believe that this poor discrimination stands in the way of true quality improvement, because if you are a nursing home (or a doctor, or a hospital), you look at this result and say “Why spend all this money on improving quality when we’re going to be sued anyway?”
If you answer “Because it’s the right thing to do”, you’re certainly not a hospital administrator, because the doing right thing balances no budgets, and increases no revenue, and improves no quarterlies, and those are the job performance indicators of the hospital administrator, just like anyone else in a business. And they have a point; most health care organizations are businesses (even the doctors, many of whom are small businessmen and women in the same way your plumber and your hairdresser are), and they need to keep the lights on and the payroll current; if a quality initiative costs money they need to pay those bills *and* the lawyers or the settlement, they’ll decide not to pay for the quality initiative, no matter how much they’d rather try to improve their quality. Not because they don’t *want* to do the right thing, but because they simply cannot *afford* it. Change costs money (ask Barack Obama), and if you don’t have money because you’re paying lawyers (or malpractice premiums, which are essentially paid to lawyers with a percentage for insurers and, oh yeah, a few patients), you can’t do change initiatives, even if you believe (as many doctors do) that some form of change is needed.
Most doctors, having heard the lawyers tell them that they (lawyers) are a force for quality improvement, have had little in the way of counterargument. This is the beginning of a counterargument with, in my opinion, legs, and quite possibly wings. The counterargument goes like this: “Maybe so, but your force is too expensive, and not effective enough. And so, like medicine, you’re either going to need to get cheaper, or be more effective”. I’m just surprised that this study wasn’t done sooner.
More on medicine being more effective another time.