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ControlsFreak  6d ago (noahpinion.blog)   Edited 6d ago   1771 thread views

Noah Smith: Insurance companies aren't the main villain of the U.S. health system

noahpinion.blog

Noah Smith has entered the debate:

So the fundamental reason your health care costs so much is not that the health insurance companies are lining their pockets. And it’s not that insurers are an inefficient mess. It’s that the actual provision of America’s health care itself just costs way too much in the first place.

The actual people charging you an arm and a leg for your care, and putting you at risk of medical bankruptcy, are the providers themselves. The smiling doctor who writes you prescriptions and sends you to the MRI and refers you to a specialist without ever asking you for money knows full well that you’re going to end up having to wrangle with the insurance company for the cost of all those services. The gentle nurse who sets up your IV doesn’t tell you whether each dose of drugs through the IV could set you back hundreds of dollars, but they know. When the polite administrative assistants at the front desk send you back to treatment without telling you that their services are out of your network, it’s because they didn’t bother to check. The executives making millions at “nonprofit” hospitals, and the shareholders making billions on the profits of companies that supply and contract with those hospitals, are people you never see and probably don’t even think about.

Excessive prices charged by health care providers are overwhelmingly the reason why Americans’ health care costs so cripplingly much. But they’ve outsourced the actual collection of those fees to insurance companies, so that your experience in the medical system feels smooth and friendly and comfortable. The insurance companies are simply hired to play the bad guy — and they’re paid a relatively modest fee for that service. So you get to hate UnitedHealthcare and Cigna, while the real people taking away your life’s savings and putting you at risk of bankruptcy get to play Mother Theresa.

So the way to make our health care system affordable is not to browbeat insurers, in the hope that they will be able to reduce their profits and pay for us to have cheap health care. Insurance companies simply do not have the power to do that, even if you threaten to shoot them. What we need is to reduce costs within the actual medical system itself...

He jumps in to the comments to add:

They [providers] don't know the exact costs, but they have a general idea, they know the costs are very high, and they typically don't talk to patients about those costs when prescribing services to them. This is understandable, given that talking about costs would make patients less comfortable while receiving care, and one of doctors' main jobs is to make patients feel comfortable. But there's basically no point in the process of receiving care at which patients could make a decision based on cost.

Incentives matter, and patients aren't automata who are unable to follow incentives, as much as some doctors would like them to be. They can understand pricing concerns/risk, and they're coming from a wide variety of financial situations. A recent NYT op-ed admits as much:

One of my first lessons as a new attending physician in a hospital serving a working-class community was in insurance. I saw my colleagues prescribing suboptimal drugs and thought they weren’t practicing evidence-based medicine. In reality, they were doing something better — practicing patient-based medicine. When people said they couldn’t afford a medication that their insurance didn’t cover, they would prescribe an alternative, even if it wasn’t the best available option.

As a young doctor, I struggled with this. Studies show this drug is the most effective treatment, I would say. Of course, the insurer will cover it. My more seasoned colleague gently chided me that if I practiced this way, then my patients wouldn’t fill their prescriptions at all. And he was right.

Of course, the op-ed is doctor-apologia, working as hard as possible to finger point at insurance companies and only admitting a possible problem of lacking clear and reasonable pricing when it comes to drugs; after all, patients and their insurance companies pay pharmacists and drug companies for drugs, not doctors. They can't see that there could be a similar problem for their own services (insert Upton Sinclair quote). But they admit that patients can and do make decisions based on their understanding of prices and risk. Yet, when it comes to their own services, this is absurd to them. Surely they know better than the patient, and the patient should just do what they say; cost doesn't matter.

But as Noah points out, they "know", but they don't know. They "don't bother to check". They give every excuse imaginable to avoid the topic. And some of this is understandable! As Noah points out, they just want to focus on the medicine; they want to make the patient feel comfortable with the medicine; medicine is sacred and money is profane, so never the two shall meet. Doctors don't want to know. They're happy to sit back and say that they're prohibited by law to consider their costs in providing recommendations, but conveniently forget to be patient-based, not remembering that patients can and do make such decisions. But patients can only do this in a reasonable way when they're properly informed before making decisions. Without information, it's generally fear that rules the day, be it fear of medical issues or fear of medical expenses. Some doctors want to not know so much that they can't even identify the names of the relevant numbers in the billing/insurance process that might be involved in the decision-making process. This is perfectly fine, of course; they shouldn't have to spend all their time becoming intimately familiar with the details of how each of their patients' insurance works.

It's hard for me to come to any conclusion other than that providers shouldn't be bothered to know those details. Instead, there is an extremely simple solution that takes one small step toward what Noah wants - providers just need to inform patients of what they know about the pricing for suggested courses of actions before those courses of action are taken. We need to create a point in time where patients can have the relevant information with which to make a decision that takes their own understanding of their own finances into account. I have suggested that providers simply provide the price that they will be billing insurance and their negotiated rate. The negotiated rate gives the patient a good idea of what to expect if the procedure is covered. Sure, the provider doesn't know the rest of the details of the insurance policy (deductibles, co-insurance, out-of-pocket max, etc.), which are important for estimating things like out-of-pocket costs - again, they shouldn't. But the patient can know these things. The only information the patient is missing is the information that the providers refuse to give them. In addition to the negotiated rate, it would be nice to have the full bill amount, so the patient can consider the risk of an insurance denial (and perhaps have a conversation about this risk or gather more information). Then, they at least have some idea of how much they could be nominally on the hook for if there is an insurance snafu.

I am generally anti-regulation, but the good doctors here at TheMotte have convinced me that there is no way that we are going to persuade them on this point with reason, so I am reluctantly throwing in my support for as minimally-scoped regulation as we can come up with, just as much as it takes to cast off the excuses and actually get numbers in front of patients at a point in time where they can use those numbers to make decisions. Hopefully, someone can get this idea to people like Noah, so they can consider advocating for something like this rather than tired ideas he gave like having the gov't "play hardball" to negotiate prices. He seems open to ideas:

There are probably other ways to foster competition and increase efficiency in the medical care system.

Indeed, there is, and it's right in front of your eyes. It's the natural conclusion of your request in the comments for what NYT would call "patient-based medicine".

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Re: patient-based medicine. I've been on one of those not-legally-called health insurance plans ("health ministries") for the last few years. It's possibly a scam, but the idea is I go out of pocket for medical care, unless I have a single medical event that costs more than $5000. Then I can file a claim. The premiums are significantly cheaper. I've also never filed a claim.

Basically, life's been pretty interesting as a cash pay patient that can afford to go to the doctor.

For a GP, I do a "Direct Primary Care" model, which is basically like ghetto-concierge medicine. I pay a small fixed amount every month and have a GP that I just email, from my gmail account, if there's an issue. I can even drop by his office sometimes for concerns. Sometimes they reply in a few hours, sometimes it takes 2 weeks. So far I still vastly prefer this to any other doctor I've ever seen.

When I need to get drug prescriptions filled, I check on goodrx.com for coupons. Most drugs are heavily discounted! In fact they're so discounted they're often cheaper than copays are on health insurance plans. I have no idea how this market works but for the most part I'm paying less. (Hot exciting drugs usually don't have coupons though)

For things like imaging, I call around town and get quotes ahead of time. Prices vary wildly, and I do not understand why. An MRI is an MRI is an MRI right? If I go to the place that quotes 1/5th as much for an MRI as another place, is the actual quality of the MRI that gets sent to my doctor just that much shittier? Or what? Nobody says anything about it.

Another example: the imaging lab in town offers DEXA scans. They're booked months out and it takes like an hour to get one done. But there's also a bro science gym about an hour away that does DEXA scans without a prescription. They do it in 7 minutes and I can get one this week if I want to. Is there any quality difference? No idea, but my doctor will accept the bro science gym's report just the same.

For emergency care I try to go to the urgent care in town. They charge a $175 flat fee. Sometimes if I have something particularly gnarly they'll send me to the ER anyway, and then the ER does basically nothing different from what the urgent care was too squeamish to do and they'll bill me $4000. Which they'll discount to $1900 if I pay cash. I don't really have the stomach to tell them to go ahead and send it to collections if they don't want to accept 15 cents on the dollar, but maybe one day I will.

So, I haven't had the misfortune of spending a week in the hospital to really test out how my health ministry would handle that. But other people say it goes fine. They're apparently pretty adept at negotiating $100k bills down to $25k and then paying that.

This whole experience has convinced me the medical system is basically a casino

  • everyone quotes you their aspirational price (a friend calls it their "fraud price")
  • the insurer never, ever pays the aspirational price, and instead reimburses a fraction of it, and most of the time the provider just accepts it
  • if you are cash pay, the providers often caves if you say you refuse to pay this, sometimes accepting even less than an insurer would reimburse them
  • sometimes, the provider thinks they could stick the insurer with a really high fee service, but if the insurer refuses to pay outright they just tell you the patient to forget about it. wat!
  • so, who pays this fraud price? people with a momentary lapse in coverage or random possibly erroneous AI-driven denial who don't want to deal, or just price insensitive people who are too proud to haggle; sometimes the provider or pharmacist is all too happy to try to convince you to pay the aspirational price with a straight face

All of this is either really re-assuring or really disturbing. But yeah, I do think having an insurer in the mix emboldens providers to increase prices.

The gentle nurse who sets up your IV doesn’t tell you whether each dose of drugs through the IV could set you back hundreds of dollars, but they know.

Why does a single dose of drugs cost hundreds of dollars? Every drug is mass-produced, and pretty much every human in the world needs them, so why the insane markup? I feel like this is the actual upstream issue. I don't think it matters too much if the patient is informed, for if you're in a hospital, you probably need at least half the treatment you're getting, so much so that you don't have a choice.

https://slatestarcodex.com/2016/09/07/reverse-voxsplaining-brand-name-drugs/

This should be required reading for anyone in this site commenting on it.

The cost of research to FDA standards of evidence is a huge one. That pill in your hand likely went through 10 years of development and another 5-10 of trials to prove to the FDA that it had no significant adverse effects. So by the time that the company finally has permission to sell the drug, it’s been costing the drug company millions a year for nearly twenty years. Every penny they can get is needed to fund the next round of drugs in development and even those that won’t be good enough to get approved. It’s a big part of the business model to get as much as possible so they can keep the lights on while they spend billions developing better drugs.

To be fair, they do also spend big gobs of money on rent-seeking and marketing. One must question whether there are better incentives from another system, such as "government buys out new drugs depending on how useful they are, no patents".

The answer here (or at least, a large part of it) is state-enforced monopolies on drugs preventing the emergence of new entrants that could reasonably compete with them. Near-limitless patent exclusivity causes the individual pharmaceutical company to have a ridiculous amount of pricing power, and the largest pharmaceutical companies file hundreds and hundreds of patent applications and extensions to keep the gravy train running. About 78% of new patents are granted for existing drugs, not new ones, and while the introduction of biosimilars decrease prices and improve access for consumers, the FDA has approved relatively few biosimilars (only 50 or so as of 2024).

It's quite funny to me how the problem is always portrayed as a lack of government regulation which we need Socialism to fix when the problem was caused by government regulation leading to over-patenting. It's because of too little free market that the problem persists, not too much.

I do like the idea of restricting patents, but it is worth considering the potential downside. The U.S. Pharma industry kinda functions like the U.S. military does. Drug development is stupidly expensive and we do a massive chunk of it. Reign in costs and we lose a lot of drug development.

Maybe worth doing but also important to actually think about.

A big part of the reason why new drug development is so expensive is that the clinical trial and other approval requirements are so onerous (which also leads to companies doing insane things like making and patenting random molecules basically identical to cheap unpatentable chemicals just so it's worth it to force it through billions of dollars worth of trials so it can be prescribed at all). But making them less onerous would get the FDA pilloried the first time someone took a new drug and died.

"Rein in". Equestrian term.

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Do you have any conception of the ratio of "excess regulatory burden" and "well shit this didn't work so we have to try again" is? (I don't really)

My intuition is that 'shit this didn't work' is more common, but also that 'shit this didn't work' happens a lot earlier in the development life cycle and thus the total losses are less per drug in the category, where as the costs for 'excess regulatory burden' happen at the end of the life cycle and thus are more onerous overall.

What I REALLY want to see is the percentage of drugs that make it to FDA testing and THEN fail. As in if we only did the required 'does it work' testing and not the amount required by the FDA how much time/money would it save and what would the false positive rate actually be. My first guess is that the savings would be significant, the false positive rate would be very low, and the only real loss would be fewer side effects listed on the bottle.

What I REALLY want to see is the percentage of drugs that make it to FDA testing and THEN fail.

Really good thought.

If you don't already know about it you should read up on the story of what happened with Aduhelm (summary not provided in order to avoid being biased).

Anything that happens in a hospital involves scores to hundreds of people, the prices aren't inflated because of the drug, they are inflated because the drug needs to be tracked, stored safely, administered to you and so on. Those things are expensive a big piece of that is actual common sense stuff (making sure that expired ones are thrown out, that things that need to be in a fridge are kept at the right temperature), a good chunk of it is regulatory requirements (again some of which are probably good and helpful others are more questionable).

Because of the number of staff and safety standards and so on, the hospital is intrinsically super expensive which is why we try and keep people from going to the ED or hospital if they can avoid it.

We are also frequently basically forbidden by law or fear of tort from being cost aware.

It's a truism that if every single person even tangentiallly involved in health care- to not just the doctors and nurses but also the people making the machines and drugs and raw supplies- were to take a 50% pay cut, we could drop prices 50%. You could say the same thing about any industry. But (a) it's not clear, politically, how you'd ever accomplish that and (b) it's a little unfair to tell this one industry to just take it on the chin so the rest of us can live cheaper. Like, you could also bring back the McDonald's dollar menu by forcing all their workers to accept a lower salary (and not allow them to quit), but that would be pretty nuts.

I think we're all hoping that there's some big pot of money being totally wasted. Maybe there's a few people in particular raking it in, or some people doing a completely useless job that can be eliminated. But I'm not sure that's the case. Even if you made all the doctors and administrators take a big pay cut, from what I've seen that still wouldn't cut overall costs all that much. And while you can always debate over which particular treatments and regulations are necessary, nobody can point to any one in particular and say "oh yeah, just stop doing that one, we'll save $100 billion with no downside."

We could perhaps make an argument for cheaper, but worse, health care. Let the people on chronic life support die instead of paying millions to keep them alive. I'd be... open to a discussion about that, but it's ethically queesy.

I think we're all hoping that there's some big pot of money being totally wasted. […] But I'm not sure that's the case.

It's never as simple as an obviously frivolous budget. However, here are at least two systemic issue that are large sources of inefficiency:

  • Information asymmetry. Doctors can and will prescribe treatments that are medically not quite necessary, but where the patient is fundamentally unable to tell the difference. This is actually a problem in Germany.
  • Administrative costs. A system with complex rules for who gets denied care and who does not will need accountants who check these rules. This is busywork that could be spent on simply actual care. I have no estimates how this affects that health care sector, but I bet that it's substantial. But I know of at least two other sectors where this problem occurs:
    • Checking unemployment benefits vs universal basic income
    • Science funding. I can't find the estimate, but for some grants, at least 50% of the work goes into writing the grant, not doing the actual research.

In the end, money is just "liquefied" work that people do for other people. Not all of that work is useful towards the goal of meaningful health care, and not all of these people are paid the same amount of dollars per hour of useful work, rightfully or wrongly.

We could perhaps make an argument for cheaper, but worse, health care.

Well, the fact that countries other than the US have health care systems which deliver comparable service, but at significantly lower cost indicates that a large chunk of money is spent ineffectively.

OK, but you can't just run a large organization with no administration. Some of those administrators do useful work! And this:

Checking unemployment benefits vs universal basic income

Checking unemployment benefits costs way, way less than universal basic income! UBI would be like $4 trillion a year. Total unemployment spending is like $10 billion a year, and that's mostly just benefits.

Likewise, you can't just approve any grant that a scientist asks for. It actually seems reasonable that scientists would spend a lot of time proposing different ideas, and then have a separate agency deciding which ones are worth doing.

most of the countries that do comparable service at lower cost are also countries with much lower salaries overall, so that goes back to the point about "just lower salaries." Generally the countries with more money, like Switzerland, also spend more on healthcare.

most of the countries that do comparable service at lower cost are also countries with much lower salaries overall, so that goes back to the point about "just lower salaries." Generally the countries with more money, like Switzerland, also spend more on healthcare.

A quick google search shows that Holland(generally higher salaries) spends less than Germany(generally lower salaries than Holland but higher than elsewhere in Europe) and on par with France(generally lower than either), while AFAIK all three use a variant of the same healthcare system. So there's definitely room for efficiency(although maybe it's just rationing).

Is it more or less than 5%? Is it enough that an average voter would actually get excited by the difference? Is it enough to counter all the meriad other historical, cultural, economica, and geographical differences between those countries?

In general: don't treat social sociences like hard math. Alllow a big margin of error.

OK, but you can't just run a large organization with no administration. Some of those administrators do useful work!

Sure. But administrative costs can easily blow 10x for checking rule B that would be unnecessary if rule A did not exist.

Total unemployment spending is like $10 billion a year, and that's mostly just benefits.

Care to cite a reference for this? What percentage is spent on the administration of those $10 billion?

Likewise, you can't just approve any grant that a scientist asks for. It actually seems reasonable that scientists would spend a lot of time proposing different ideas, and then have a separate agency deciding which ones are worth doing.

If you look at the source that I indicated, you will find ample evidence that the current system is dysfunctional, despite it "seeming reasonable". The gist is this: a) You need scientist time to check grants, which could be spent on doing science instead, and b) as science is inherently unpredictable, finding out which ones are doing is actually hard and the separate agency currently mostly fails at that task.

most of the countries that do comparable service at lower cost are also countries with much lower salaries overall, so that goes back to the point about "just lower salaries." Generally the countries with more money, like Switzerland, also spend more on healthcare.

I once took a breadth test in Germany, and a breadth test in the US, close in time. The Germany one is 50 EUR, the US one was $1020. That's a 20x difference, and I don't think that this can be explained by salaries alone.

Apparently I was off, it's more like $36 billion (https://crsreports.congress.gov/product/pdf/IF/IF10336). It was much higher in 2021, but that was a temporary thing because of Covid. I can't find a definitive source for admin costs, but AI says $5.8 billion. It's not nothing, but it's still far, far smaller than what a UBI costs. I feel like that should be obvious from intuition? Of course a program that only covers a fraction of the population for a temporary period is going to cost less than one that covers everyone forever. It's like comparing the Rhode Island national guard to the US army.

What's your source for thinking that Administration drives costs up by a factor of 10? Doesn't that seem extreme?

I once took a breadth test in Germany, and a breadth test in the US, close in time. The Germany one is 50 EUR, the US one was $1020. That's a 20x difference, and I don't think that this can be explained by salaries alone.

Well, you know what they say about anecdotes and data. Germany spends about 12% of its GDP on healthcare, and that percent has steadily gone up over time. The US spends 17%, which is certainly higher but not massively so. It's roughly what I'd expect from a country that's wealthier, does more research, and lives more unhealthily than Germany. At the best, you could argue that adopting their system would save us 1/3 of health care costs, but certainly not 20x.

Of course our system isn't perfect and has many flaws... but so does every other system on Earth.

Well, you know what they say about anecdotes and data. Germany spends about 12% of its GDP on healthcare, and that percent has steadily gone up over time. The US spends 17%, which is certainly higher but not massively so

But comparing GPD is not the same as comparing prices.

Prices for medical procedures in Germany are regulated by the Gebührenordnung für Ärzte (GoÄ), which is publicly visible. For example, the typical cost of a duodenoscopy (optical inspection of the gastrointestinal tract just after the stomach) is ~ 200 EUR. This is the price that a person would pay if they decide to get this procedure out of their own pocket (I have friends who have done this).

I don't know a good source for prices in the US, but let me take this New York based thing as an example. They list an upper endoscopy at $975. That's a 4-5x price difference compared to the price in Germany!

In addition, in Germany, this price is almost always covered by insurance, which is mandatory for everybody. In Germany, it is unheard of for people to go bankrupt due to a health expense. In the US, that's very different — people regularly go broke due to medical costs and ask for monetary support online.

If your figures about GDP are correct, this implies that the US performs dramatically less procedures than Germany. This can be due to efficiency, which I doubt, or due to 4-5x reduced level of care.

I feel like you're still missing the key thing? The main reason that prices are lower in Germany is that German salaries are lower. That's true in almost every field, but especially true in the higher-end fields like medicine. Comparing random specific operations doesn't tell much of a story- you have to look at overall healthcare cost. Which is in the same ballpark, just higher in America because we're so much richer than those poor, beknighted Germans. OK that's sarcasm, but still... compare your salary (and take-home pay!) as an American software engineer to a German peer. When I did that, I was almost embarassed by how much more I made than my peers in Euroland.

No. Look, if you sit down and actually do the calculation, the combination of GDP, prices, salaries doesn't add up as you claim — and that's before asking the question of which quality of service you're getting.

EDIT: And the statement "salaries are higher, therefore prices must be higher" cannot even be a causation — if anything, it's the other way round: higher prices cause higher salaries (assuming that the workload stays the same). But why should prices for each specific medical procedure or diagnostic in the US be higher? Do they add magic sprinkles to it, so that the health outcome is phenomenally better than in Germany? Price and value are two fundamentally different things, and the question is whether the US offers a good price for the medicine stuff.

No, I don't believe that you have "sat down and done the calculation." It seems like your entire argument is based on a single anecdote of when you went to Germany and got a good deal on healthcare (which was paid for by the government there). You should read more about Baumol's cost disease.

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That's a 4-5x price difference compared to the price in Germany!

I was going to smugly point out that you forgot to account for EUR to USD conversion rates, but no, you didn't. Wow. It's been a bad decade for Europe...

Oh, and here are more big issues for private health care, second-order effects:

  • Timely treatment is cheaper than delayed treatment — due to increasing complications as the medical problem festers
  • Effective treatment keeps people in the workforce

The issue with health problems is that it is usually cheaper to fix them early and thoroughly, rather than spend money peacemeal and end up with a complex operation to save the patient's life at the end. It's more efficient to do a the stitches today, than to deny care only to amputate the entire arm in two weeks.

On the second point, when a medical insurer is forced to keep paying for a patient that was taken out of the workforce by their illness, the insurer has an incentive to pay for early interventions, because the patient can still contribute to the insurance while they are working. If the patient can't work, they don't generate income for the insurer.

I do think we have some low hanging fruit. Tort reform would dramatically reduce the instances of expensive low value care and could be done while still allowing patients to sue.

I don't have the states on me at hand right now but administrative bloat is something absurd, like 1:1 (with physicians) 50 years ago to 1:16 now.

A lot of this is driven by bedside nurses being burnt out and wanting a different job, we also have a bedside nursing shortage right now. One fix fixes another.

I don't have the states on me at hand right now but administrative bloat is something absurd, like 1:1 (with physicians) 50 years ago to 1:16 now.

I suspect that, 50 years ago, the physicians were doing a lot of administrative work themselves. Now that's seperated into a separate job. The real problem is that the number of physicians hasn't grown- thanks AMA and limited residency spots.

The real problem is that the number of physicians hasn't grown- thanks AMA and limited residency spots.

This is incorrect and has no relationship to the problem at hand.

Also 50 years ago physicians did considerably less administrative work.

Tort reform is less low-hanging fruit than a buzzword that refers to a set of vague policy ideas that only have a tenuous relationship to actually reducing the number of lawsuits. The exception is that when it's done really aggressively, in which case it pretty much bars all lawsuits excepting the few that meet stringent criteria. Most of this is based upon a myth that what's driving these costs isn't just lawsuits but frivolous lawsuits. And yeah, any News of the Weird type publication can show you all kinds of examples of clearly frivolous suits, but these are a distinct minority, especially in medical malpractice litigation.

The thing about medical malpractice and most other personal injury suits is that they're already expensive to litigate. Plaintiff's lawyers aren't going to take a case unless the damages are enough to make it worthwhile. Just to start with, you're going to need medical records, which are going to cost hundreds and can easily run into the thousands if there was a lengthy hospital stay. Then you need attorney time to go through these records. You need to depose witnesses and order transcripts; you're looking at least at deposing the doctor you're suing, the Plaintiff (or other damage witnesses if the plaintiff is deceased), and possibly other medical personnel. Once you've gathered this information, it's useless unless you have an expert who can explain to the jury why the doctor's conduct deviated from the standard of care, so add another 10 grand or so to get an expert report.

And this is all just to get to the point where you can talk settlement with the defense. If the case actually goes to trial, tack on another $60,000–$100,000 in time and expenses to see the case through to verdict. The upshot is that very few plaintiff's attorneys are willing to take on "frivolous" cases. Ideas like imposing the English rule where an unsuccessful plaintiff has t cover the defense costs is ultimately irrelevant in a legal environment where 99.9% of cases are settled before trial. It may make some defendants more likely to take a chance on borderline cases, but there aren't many of those.

It is worth noting that England has abolished the English rule for personal injury cases (including medical malpractice) - we now have a system called QOCS (qualified one-way cost shifting) where the claimant can never end up owing the defendant money for costs. (In the case where a winning claimant has to pay costs because they failed to beat a timely settlement offer, the costs can be set off against the damages). This rarely matters, because the vast majority of personal injury cases are slam dunks against at least one defendant.

The reason for doing this was that ordinary middle-class personal injury claimants needed to insure against owing the defendant money, and the insurance industry and tort bar had worked out ways of turning these insurance policies into a total rort the cost of which ended up being collected from losing defendants.

I've never actually talked to a lawyer (well, one who knew about malpractice) about this so I welcome instruction if you think I'm off base.

My two primary thoughts are:

  1. The problem isn't the expense of lawsuits and the verdicts, it is the impacts the threat of those have on patient care and physician decision making. Doctors are already (generally appropriately) very risk averse. Lawsuits are scary and we all know somebody who lost a lawsuit for bullshit reasons or went through ten years of suffering before winning. Even a dropped complaint makes licensing and other stuff a huge fucking pain in the ass. Therefore we do things like order unnecessary CTs and spend twice as long on note writing in order to hypothetically ward off the threat of malpractice. Most of the time it doesn't do shit but that doesn't stop it from making things more expensive, time consuming and increasing the risks on patients. Defensive medicine is problematic than actual malpractice is.

  2. I figure one solution is to make the results more predictable. All of these posted cases where somebody didn't do anything wrong and the jury still dropped a hundred million dollar verdict are terrifying. Have a non-jury resolution somehow. Expert panel. Doesn't need to be just physicians, can be industry or legal experts or whatever, just anybody who knows what they are talking about so when the expert witness lies about what happened nobody believes it. Or empower licensing boards to take away the licenses of expert witnesses who sell a pile of shit. That's a dangerous power that I'm not super comfortable with but we gotta do something. And I do want to preserve the power of people to sue if someone actually does something wrong.

Ultimately the root of the problem is that awards and verdicts are independent of actual malfeasance and deviation from standard of care.

Just as a preliminary matter, I looked up some statistics at work today on the issue, and they were surprising. The average malpractice settlement is around 350k, and the average verdict is around 1 million. I thought these numbers were low, but I saw them quoted in multiple sources, so I'm going to assume they're true. I practice product liability and toxic tort law, and while I don't know the total settlement average due to the number of defendants, we usually estimate verdicts in the 2 to 3 million range for someone with cancer, even if it's an older person in bad health. There are very few verdicts we can use for comparison, but they're almost all significantly larger than this. That being said, I saw another statistic suggesting that 80%–90% of cases with weak evidence resulted in defense verdicts, 70% of borderline cases did, and only 50% of good cases did. This suggests that juries really don't like awarding damages, but when they do, they go big. In my line of work a defense verdict is highly unlikely, so 1 million may be a reasonable amount if you consider that the modal jury award is zero.

I also learned that 29 states already have tort reform that limits non-economic damages, including some big ones like Texas and California. These caps range anywhere from 250k to 1 million, but they're still significantly smaller than what you'd expect from a jury. Without non-economic damages, it's pretty hard to get to these huge amounts, since they are by nature designed to put a dollar amount on what's priceless. For economic damages to get truly large you'd have to have something like a high-earning plaintiff who is totally disabled and needs to be in a skilled nursing facility for the rest of their life, and even then I can't see it getting above 20 million or so. To show you how we'd calculate that, say you have a 25 year old who makes 100k a year and is permanently disabled. That gives you 4 million in lost earnings assuming retirement at 65. However, if he's entitled to disability payments totaling $1500/month, you'd deduct that leaving you with about 3.2 million. If the skilled nursing facility costs 10k/month and he's expected to live an additional 50 years, that's 6 million, except medicaid is covering part of that cost so you have to deduct that. Add on the medical bills and other stuff and you might get to ten million, which is steep, but nothing like 70 million for pain and suffering alone. And this isn't something the plaintiff is just going to assert out of thin air; they have to show medical bills and hire an economic expert to estimate future earnings and costs. To address your points:

  • I read an NIH study discussing defensive healthcare, and the results were inconclusive. While surveys showed that something like 75% of doctors agreed that they did it, there was no attempt to quantify it, and the NIH study conceded that relying on self-reported questionnaires has its limitations. A study in I think Florida that compared cardiologists who had been previously sued against those who hadn't showed that ones who had been sued ordered 1% more tests, but again, this kind of thing has its limitations. From what I can tell, malpractice insurance premiums are as much as 50% lower in states with award caps than those without, but whether this has any effect on the amount of defensive medicine practiced is anyone's guess. I certainly haven't seen any suggestion that doctors in California are less worried about malpractice claims just because the risk of real whoppers is limited.

Like I said earlier, trials are rare. Something has to go seriously off the rails for a case to go to trial. While caps eliminate some of the tail risk of claims, they don't seem to eliminate the amount of total claims. It's worth remembering that most claims are going to settle well within any reasonable award cap. Even in states without caps, while plaintiff's attorneys may dream of huge awards, they're really a mixed blessing. A settlement offers cash almost immediately; a jury verdict means waiting months for a shot at a large judgment that may get appealed, keeping the money out of your hands for years. If you get sued as a doctor it's more likely to be the kind of case that settles for 200k than the kind where a jury awards a multi-million dollar verdict. The only thing I can conclude is that even if you were to make large awards impossible, as long as you're allowing any kind of malpractice suits the insurance companies are going to want to limit the risk, and if that means defensive medicine, that's what you're going to have to do.

  • What you're describing here already exists, in a way. They're called arbitration panels. Arbitration is a form of alternative dispute resolution where an arbitrator or panel of arbitrators is selected by the parties to hear the case and make a determination. The arbitrators are attorneys who have experience in the relevant area of the law. The way it would work in a malpractice action is that if a neutral arbitrator is required, an independent agency like the American Arbitration Association would provide the parties with a randomly-selected list of 15 medical malpractice arbitrators. Each side would get to reject 5, and the arbitrator would be selected randomly from among the remaining names. If an arbitration panel is needed, each side would appoint their own arbitrator, and the arbitrators would agree on a third neutral party. The procedures are much more informal than in court. Discovery is limited, the rules of evidence don't apply, and the arbitrators may limit what testimony they'll allow and even if you can cross-examine witnesses. For instance, instead of taking depositions you'll get the relevant fact witnesses to submit written statements, and the expert witnesses will submit their reports and that will be the end of it. There is no right to appeal.

Requiring arbitration isn't something you have to wait around for the state legislature to require; doctors and hospitals can and have put mandatory arbitration provisions in their patient care agreements. If the patient doesn't like it, they can choose another doctor or go to another hospital. But these provisions are actually becoming less common than they were a couple decades ago. Why? Because the average settlements are higher.

For whatever reason, arbitrators (and judges) love splitting the baby. With juries it's all or nothing. With arbitrators, it's like they calculate the damages and make the award based on how strong they think the case is. They aren't going to give out a bonanza in any circumstances, so the ceiling is lower compared to juries. But the floor is higher; a weak case that would result in a defense verdict at trial is going to result in at least some award in arbitration, even if the award is small. And since the process is significantly less expensive than litigation, the whole calculus changes. If I go to a traditional trial I'm going to spend a ton of my own money in exchange for, at best, a 50/50 chance of getting a favorable verdict. In arbitration, the marginal cost of going all the way is lower, and the chance of walking away with something is higher. There's less of an incentive to settle, so if the defendant wants to make the case go away he's going to have to offer something close to what he expects the award to be. Realistically, though, in arbitration the plaintiff has no real motivation to settle, so what you end up with is an arbitration award that ends up being more than you would have paid in a traditional settlement, and since the process is so frictionless for the plaintiffs, they're going to file more suits.

Now, you could say that you meant that this panel should include doctors and not lawyers, or maybe a combination of the two, or maybe that you didn't mean arbitration but a more formal system like trial but with an expert panel instead of a jury, or whatever. Just keep two things in mind. The first is that the system is designed to compensate people for injuries, not to make things easier for doctors. The effects of malpractice suits on medicine are unfortunate, but as long as we believe that people who are injured by malpractice are entitled to compensation, they will persist. You may think certain cases are bullshit, but the plaintiff is still suffering, and I'm saying this as part of the defense bar. The other thing to keep in mind is that there's no reason to believe that some alternative fact finder is going to do better than a jury. You can change things, but you may not like the result.

Wow.

First of all - thank you for writing this up, I imagine if I had asked for this in a work capacity it would have cost me, so I very much appreciate it (and I'm going to feel somewhat guilty about replying in a lot less words).

Second - I spend a ton of time here complaining about myths in medicine and so on so you bet your ass I'm paying close attention when a subject matter expert in something else is talking (again, thank you).

Third - Shit. I guess this means I have to drop this line of "here's the solution!!!"

To dig into some of the specifics you mentioned, those numbers don't surprise me. Supposedly (correct me if I'm wrong) damages in most cases are soft capped near the maximum the insurance will pay out because that's "easier" to get approved and would therefore result in lower numbers. Again this is all supposedly, but the numbers you tossed out line up with what I've seen a lot.

Ultimately physician decisions on this topic are absolutely vibe based - you see one colleague get nailed for something that wasn't even wrong and end up going through a five year trial and become a different, broken person... that changes what you do, even if it shouldn't. Or maybe we just say that's what we do and it's a meme? Hard to accurately study.

There are costs for settling though and we hate it even if it makes the most sense (or the hospital/our insurance forces us to). That's because it impacts all the hugely annoying paperwork we have to do for the rest of our career which sounds like a lame complaint but with the hoop jumping we have to do it adds up to a huge pain in the ass.

Fourth - Double shit. You are spot on, I was asking for arbitration - and I hate arbitration! I don't know if it is actually bad but my opinions on it are totally drive by the anti-arbitration memes.

I guess the next move would be to request the malpractice standards used in the VA and Prison, which are different. Not happy about that though because the care they give is awful typically.

Two sidebars:

  1. Meddit has a running medmal blog poster. It's pretty instructive and you see a mix of "Jesus Christ fire that expert witness into the sun" and "fuck I hope I never make that mistake." Generally good discussion, if you develop any interest in this take a look!

  2. OB malpractice can be absurd - as high as 150k a year (although that's the high end). On the low end Psych is like 5k. Darkly hilarious given that's the specialty with the most people who want to sue. That's an absolutely insane business expense though (for OB).

OB malpractice can be absurd - as high as 150k a year (although that's the high end).

Is this for OB's who've already been sued, or is this some kind of adjustment for high risk markets(Louisiana...) or whatever?

That's the high end of the range, here's what google AI bullshit says on the matter:

"Obstetric malpractice rates are high, with OB/GYNs having one of the highest malpractice rates of any medical profession: Malpractice claims: More than 62% of OB/GYNs are sued during their career. Malpractice insurance: OB/GYNs have some of the highest malpractice insurance rates. Costly claims: Obstetric malpractice claims are among the most expensive medical malpractice claims. Birth injuries: Birth injury claims are the most expensive obstetric malpractice claims."

And from an article: "As a result, an OB in Chicago typically pays about $140,000 a year for med mal insurance, while the median premium for other specialties is $30,000 to $40,000."

Some key bits - OB gets sued a lot, OB patients are pretty much by definition healthier than most patients so that means bad outcomes are more expensive (compare 75 year old with kidney failure with 30 year old mother of two with no past medical history). If you injure a kid literally while they are being born you are like on the hook for everything that ever happens to them...

I think it's probably more of a practice environment issue than mistake issue, on average they get sued (62%) and there are states that are known to be hell holes for this (example: NJ).

Don't know for sure though.

I mean I've definitely heard whisperings about this- there's a pro-life canard that abortion doctors are mostly ones who can't carry insurance for a live birth because of this issue+being on the left hand of the bell curve for good doctoring- but the magnitude is a surprise.

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Why do you say that VA care is abysmal?

The classic example is that pretty much everyone who rotates through there has arrived in the morning to see a patient and found someone dead and cold but who was charted as alive by the nurses. The follow-up is "what's the difference between a VA nurse and a bullet?" "you can fire a bullet" "a bullet can only kill one person" "a bullet can draw blood."

The care quality is pretty bad. However the VA is actually pretty popular with veterans.

If you mean "why is it abysmal."

Well it is government run is probably most of the answer. However it is also a jobs program for vets instead of a health system so that may be a big chunk as well.

I meant "What about itis abysmal?" Your examples refer to hospitals, not clinics? I ask as it is my only source of care. All the horror stories (mostly undiagnosed conditions) I've heard were in the private systems.

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The anti-arbitration memes have given the practice an unfair rap, which has in a perverse way contributed to a self-fulfilling prophecy that was ultimately bad for consumers. Arbitration clauses were added to consumer contracts primarily as a means of preventing class-actions, not as a cynical way to rig the outcomes. We can argue over whether limiting class actions is all that noble a goal, but I can assure you that they aren't initiated by aggrieved consumers but by lawyers who figured out that if consumers were being biked out of 50 cents worth of Cheerios for every box sold, 1/3 or the total payout will be boku bucks. So they file a class action representing anyone who bought Cheerios during the year that their scales were defective and millions of consumers get dollar-off coupons while the lawyers take home a third of the total settlement value.

Anyway, studies came out that showed consumers lost a disproportionate percentage of arbitration cases as compared with regular court cases and people concluded that this must be because the companies choose arbitrators they know will rule in their favor and who have financial interest in not biting the hand that feeds, and since proceedings are secret they don't even have to face public scrutiny. This was a convenient explanation, but someone looked harder at the numbers and found that the study showing arbitration was a raw deal was flawed. It included all cases heard under consumer arbitration clauses, not just consumer-initiated ones. And the bulk of these cases were debt collection claims filed by credit card companies against people who didn't pay their bills. In other words, the numbers were skewered by claims that were vastly different than what one thinks of in terms of "consumer claims", and that would have had the same result in a regular court.

Actually, they would have had a worse result in regular court. In almost all of these cases the debtor has no real defense so they don't bother to fight the charges. In regular court this results in a default judgment. In arbitration, however, the arbitrators actually made the credit card companies prove their case. And they found that arbitrators rarely awarded debtors the full amount. So even in cases that would normally seem hopeless, arbitration was better for the consumer. And it was better for the consumer in other cases as well. I forget the exact numbers, but assuming that the odds of a satisfactory outcome are 50% in normal court, they were like 58% in arbitration. Not a slam dunk, but not exactly strong evidence that the deck is always stacked against the little guy. Nonetheless, companies started including arbitration clauses to guard against class actions. Eventually they became boilerplate, even in contracts that had little exposure to class action. People like Ralph Nader took notice and published studies saying that this was bad for the consumer. Consumers responded by assuming that arbitration claims were unwinnable, and stopped filing them. Companies started including more of them because they became a surefire way of preventing claims. That all of this was bullshit was lost.

It is thus that I present my own personal experience with arbitration, to show you how the process goes. In the winter of 2022 I was driving from Pittsburgh to Colorado to ski, and my right rear wheel started making noise around Kansas City. Suspecting that this may be a bad bearing, and having a long drive to get home, I decided to have it looked at in Denver. I used a shop my cousin's husband recommended (though I found out later that he only named it because it was close to his house). I explained the situation and that I needed it done that day and they quoted my $2400. Not having much of a choice, I agreed to having the work done. When I was driving back I called Subaru in Pittsburgh to get a quote for the work. $1200. From the dealer, with genuine Subaru parts. Needless to say, I felt ripped off.

But what to do? I had agreed to the price. But upon looking at my bill, I was only given a total without an itemized breakdown. Subaru had given me more information over the phone, without my even having to ask for it. So I began looking for something to use as leverage. According to the Colorado Auto Repair Code, the shop had committed several violations, for each of which I was entitled to statutory damages of $500. The most obvious one was that they didn't provide a breakdown of parts and labor costs. When I got home I called them, knowing it was futile. I told them that Subaru in Pittsburgh quoted me the job at half the price. They said things were more expensive in Denver. I asked them if they'd match a quote from Subaru in Denver. They said no. I asked them for the itemized breakdown. The labor costs were actually reasonable, but, for aftermarket parts, they charged me more than double the list price of the OEM equivalent and more than triple the list price of the parts they actually used. This markup over OEM plus the diagnostic fee (which is usually waived if you have the work done) was responsible for the difference between their price and the Subaru price. I explained the code violations. He said that every garage he ever worked at did it that way. I told him that the law is pretty clear and that they're in violation. He told me that if I was threatening legal action he had to end the call.

So I looked at my bill and immediately found the arbitration provision. You have to inform them in writing and wait 30 days before filing a claim. I sent a certified letter explaining the situation. I received no response. 45 days later I opened a claim with JAMS, and arbitration association. The advantage with JAMS over the American Arbitration Association is JAMS requires an in-person hearing in the consumer's county. Within a week, I got a call from the owner, who was very apologetic. I think the reality hit him that it was going to cost him somewhere in the neighborhood of 5 grand to defend this arbitration claim (in consumer arbitration, the consumer is only resoponsible for the initial fee). He offered me $500 plus a waiver of the diagnostic fee. I told him I wanted the difference between what Subaru quoted me and his price, plus $250 to cover my filing fee. He bristled at having to cover the filing fee, and I told him I had tried to resolve the issue with the service manager weeks ago and it could have ended there. In the meantime, it could end here, or we could take it to the arbitrator. Another weeks delay and he'd have to pay $1500 for his side of the initiation fee, which is about what I was asking. He agreed to charge back the amount I was asking for.

If it hadn't been for that arbitration clause I'd have had to go to Colorado and file suit in small claims court there. He wouldn't have had to pay any fees, and it would have been really convenient for him to defend the suit. I don't know if I would have won. I don;t know if I would have won the arbitration hearing either. I do know that a Pennsylvania arbitrator deciding a case involving a local tourist who feels he was swindled by an out of state mechanic who knew he was in a desperate situation is not going to feel too much sympathy for the mechanic. He's also not going to be familiar enough with Colorado law to offer a sophisticated analysis of the legal issues. I might not have gotten what I was asking for, but I would have gotten something. In any event, since the expense is borne by the merchant, there's a strong incentive on their end to resolve the matter quickly. It may not be great for malpractice cases involving hundreds of thousands of dollars, but for little shit like this it works much better than the court system.

And the bulk of these cases were debt collection claims filed by credit card companies against people who didn't pay their bills. In other words, the numbers were skewered by claims that were vastly different than what one thinks of in terms of "consumer claims", and that would have had the same result in a regular court.

Goddamn that's a huge confounding variable.

Hilarious story

This is overall great teaching, you explain the issue and then tie it into a humorous and relatable anecdote that gives it context.

I appreciate you sharing and have updated my thoughts on arbitration.

One weird trick I want to see the US try is rearranging the relationship between the three parties. Right now the default relationship is between the provider and the patient, with the insurer covering some of the costs (maybe).

But what if the default relationship was between the provider and the insurer? The patient, as soon as he makes it clear he has insurance and pays whatever copay there is, is off the hook. For anything the provider does for him it has to claw the money out of the insurer itself.

Now the good doctor is no longer able to provide the best and the most expensive treatment. The insurer can say, "we don't pay more than $500 for acute shoulder pain treatment", and now it's the doctor who has to come up with a treatment plan that is under $500 or convince the patient to pay extra out of pocket.

Wasn't that roughly the idea behind HMOs? Those seem to have fallen out of favor because they always require referrals and heavily limit providers in practice. But I'll admit I've never had (or even been offered) such a plan.

For anything the provider does for him it has to claw the money out of the insurer itself.

This actually already happens now. We spend a lot of time on the phone with insurance trying to get them to cover what they said they would that's for both us and the patient "no no you can't bill us for this office visit because you described the mass as spiculated" "that's a technically term" "we will only pay you if you describe it in your note as spiky" "wtf."

Hospitals have entire departments whose full-time job it is to assist with this.

It just doesn't involve the patient typically so they don't notice.

Heh, I had a (mostly-indirect) experience with this as a patient once: I got the letters from my insurance denying a claim (twice!) because the provider, according to the letters, neglected to put their tax ID on the paperwork. It got sorted out mostly without my involvement, but I did spend time worrying about it and even calling the provider to inquire about it.

I assume they filled out the form correctly on the third attempt, but it presumably behooves the insurance companies to have increasingly Byzantine processes for paying providers.

Super super common "you said left-right, we want you to say right-left." Hospitals and practices have full time employee's whose job it is to comb over notes and have the doc rewrite them to satisfy a constantly changing set of requirements.

"Doc we need you to put that the patient is obese in the assessment and plan for this note" "well I didn't really do much for that to be honest and now that the patient's can read the notes they may not like that" "yes but if you write that you encouraged them to exercise we can get an extra five cents from the insurance company" "I did, in the section of my note when I wrote down what we talked about" "no, no it has to be in the assessment and plan as a specific problem"

A bit less than 2 months ago, our beloved pet bunny got life-threateningly sick. We took her to the veterinary hospital where she had to stay for 2 days. There is no insurance for bunnies here (we checked), so all the costs were paid out of pocket. The vets gave us an idea of the costs of specific tests, hospitalization, etc... so that was good.

The "ideal" of how to care for our bunny could have been ruinously expensive; surgeries, x-rays, etc... But one part of the process I did not enjoy is that the vet seemed reluctant to give advice as to what would be the best use of the money we could put aside for this. We could have easily blown over 5000$ or more on care if we had left her in their care as long as they thought was necessary, if we had done every test they wanted. Once it was clear to them that we were budget limited they were talking about how much it would cost to have her discharged and brought back if euthanasia becomes necessary, etc... Thankfully, our bunny is doing fine now, and I do think they did a good job taking care of her. And I don't think it's necessarily from a desire to extract money from us they were recommending expensive care, but because they don't like animals dying either.

Taking this experience of dealing with (veterinary) medical costs and bringing it to human care, what I feel would cause issues letting people take on the costs of medical care directly is that they are not aware of what is efficient use of ressources and doctors tend by their position to prefer to use unlimited ressources. And administrators are either detached from costs concerns (government administrators) or incentivised to minimise costs (insurance). What we'd need is hireable healthcare negociators who work solely for the patients, to maximise utility for ressources.

So glad to hear your little bun buns is doing well!

[consumers] are not aware of what is efficient use of resources

The great part about the price system is that this is never true, but it's totally fine. Consumers are not aware of what is efficient use of food resources. Or resources in automotive services. Or... or... or... In fact, believe it or not, many people even disagree as to whether something is an efficient use of resources! My wife absolutely loves bunnies, but if we had one as a pet, I think she would be willing to do even less veterinary care for it. She grew up in poor farm country, where there were a variety of animals around, both stray and productive. In her mind, animals exist, they're nice, it's good to be nice to them, but many just have short lifespans which aren't worth dumping much money into to extend. Even though we have more resources now, she still has similar views.

What we'd need is hireable healthcare negociators who work solely for the patients, to maximise utility for ressources.

I don't see why that wouldn't be a plausible service. I know that there are all sorts of different medical-related services out there that aren't traditional practice of medicine. I heard a podcast once about a person who has enough knowledge of medicine to make a business out of just connecting individual patients to possible clinical trials for whatever condition they have, because the "system" for this is more broken than you could possibly imagine.

The sources of knowledge that patients can get are diffuse and wildly varied. They don't fit neatly into technocratic boxes. When my mom was going through cancer treatment, she joined an online support group, basically just a group of folks who got together on zoom or whatever and talked about stuff. She could have had all the written disclosures or explanations from doctors in the world about the side effects of certain drugs, and it would have paled in comparison to just looking at a variety of actual people who were taking those drugs and hearing them talk about their life. (...and different people could have disagreed with her assessment!)

So glad to hear your little bun buns is doing well!

Thanks, we're glad too. She's back to being her usual sassy self.

The great part about the price system is that this is never true, but it's totally fine. Consumers are not aware of what is efficient use of food resources. Or resources in automotive services. Or... or... or... In fact, believe it or not, many people even disagree as to whether something is an efficient use of resources!

That is true as as for allocation of ressources "to" healthcare; many of my friends seem to think we're crazy for the amount we did pay to have our bunny cared for, but to us it was worth it. But I think the issue is that allocation of ressources "within" healthcare is the issue. We had a certain amount of care we could pay for in our bunny's case. It was difficult to get from the veterinary what was the best use of that amount.

That's what I fear with human medicine; imagine how doctors could guilt trip people into paying way more by implying they're heartless cheakskates for not being willing to pay for low-likelihood tests and interventions. I do think in that case I would really like the service of someone knowledgeable who could argue on my behalf with the doctor.

I think the ultimate US health system would be: Medicaid for those who need it, Medicare for purely palliative care, HSAs as common as 401ks, and insurance that only covers emergencies where the patient is unconscious or at risk of life and limb if a quick decision isn't made. Otherwise full price transparency and an easy way to look up prices for comparable services across all nearby providers.

Otherwise full price transparency and an easy way to look up prices for comparable services across all nearby providers.

This is viable for some services, but much of the expense in healthcare is unplanned and transferring between systems is hideously expensive and complicated. If you get hit by a car and end up in the ICU for three weeks and rehab for five months that's as expensive as thousands and thousands of doctor's visits, and price transparency doesn't help a lick. Even if you are awake and say "take me to the cheaper hospital" the ambulance is going to take you to the place you are triaged to, because if you die your family will sue the shit out of them and win.

Furthermore how do you want handle cost overruns. Let's say you get your appendix out and you shop around to whoever reports the lowest price (and it's urgent not emergent so you leave the hospital AMA to go to the cheaper place). Let's say 5k. What do you do when the surgery is a bit more complicated and expensive and the bill is 15k. What do you do when you have a major complication and the price is 1.5 million dollars? People would be furious! And if you want to just average out how much the hospital spent on all of those surgeries...well you've just reinvented general insurance again (since healthy/less complicated people are subsidizing the complicated).

Typically, the solution to these problems is advanced pricing. The hospital examines you and gives you a fixed quote. If there are complications, the hospital is on the hook for them. I've gotten medical services that were effectively not covered by insurance and this worked really well. For a bigger example, take a look at https://surgerycenterok.com/. There's an old but great interview by the founder: https://www.econtalk.org/keith-smith-on-free-market-health-care/.

Furthermore how do you want handle cost overruns. Let's say you get your appendix out and you shop around to whoever reports the lowest price (and it's urgent not emergent so you leave the hospital AMA to go to the cheaper place). Let's say 5k. What do you do when the surgery is a bit more complicated and expensive and the bill is 15k. What do you do when you have a major complication and the price is 1.5 million dollars?

This kind of risk distribution seems to be the big question. I'm not sure what the most just way to handle it is, or that it is the same question in every case.

But this isn't a crazy problem that we only run into in medical care. Every contractor in the world is subject to the same problem. Estimates and quotes from any HVAC contractor or excavator takes account of the possibility of cost overruns. The placement of that cost overrun is negotiated in the contract. They offer you an estimate of the cost, and then a clause in there will tell you that it may cost more, or that this price is only certain for X days, or that cost overruns may require progress payments or be split 50/50 or be subject to additional Good Faith Negotiations. Or they just eat the cost when they get the estimate wrong. Or you have a bond on the job completion which will pay out if the job isn't done.

One could easily sell, as part of the price of the procedure, insurance on the procedure itself covering possible bad outcomes. Rather than tying in the price of every medical procedure in the country with the price of every other medical procedure in the country.

These are all solved problems in every field, except medicine.

These are all solved problems in every field, except medicine.

Including medicine outside the US. Private hospitals in the UK are happy to offer fixed-ish prices for elective surgeries and take most of the financial risk of complications.

ASCs in the U.S. will sometimes do cash pay for low risk things, so it is possible in the US but keep in mind that due to greater access to expensive technology, salary costs (nurses get paid more in the US than doctors do in the UK right?), and lack of rationing mean that the price of care can be much much more expensive.

By a lot.

California alone has more ECMO centers than the entire UK.

Every contractor in the world is subject to the same problem.

If contractor is redoing my attic and on starting renovations it turns out that my uncle stored there 10kg of U-235, his collection of land mines and 1450kg of asbestos and top secret documents of USA, Ming Empire and Slovenia... Then they can just announce that they stop work, pay penalties stipulated by contract and run away screaming.

The same for say programming contract, if I discover that part of system run on literal punchcards in sealed off bunker then I will likely (depending on contract structure) pay contract penalties and run away or announce that 800h time estimate gets revised to >4800h.

If doctor is doing routine appendix and discovers clot/cancer/other medical emergency equivalent to above they are, I expect, not allowed to run away screaming and pay just modest penalty stipulated by contract and leave patent there.

It's extremely common to abort a surgical procedure because of unexpected complications. And, to scale, a surgeon would face similar liability: modest penalties for damage done, reliance.

This is easily figured out in contract.

Why are y'all so dramatic with your examples?

I think one of the common problems is that intuitions from other fields die in medicine. Your HVAC contractor fucks up and it costs 2-5 times more. If it's bad somebody goes out of business.

If something has 50x or 100x times cost overruns like idk the F-35 it becomes a national scandal.

In medicine that's just Tuesday.

You have a bad reaction to anesthesia during a routine case, die on the table, they revive you and dump you in the ICU for three weeks before you can think again and then end up in rehab for six months and it's going to cost millions of dollars for what was supposed to be 4.5k.

That's an extreme example but that kind of stuff happens, and lesser versions all the time.

The hospital can't go out of business, society says no. And we can't let you die. Society says no. I'm fine with both of those but they balloon expense.

Except that lots of businesses face similar problems.

Every day trucking companies send out employees onto the highways criss-crossing the country, there are about 150,000 accidents en route, and about 600 of them die each year. That doesn't prevent a broker from being able to give me a quote on the phone in ten minutes as to the expected cost of sending a container to Des Moines. The expected cost doesn't contain the possibility of the truck being wrecked, of the cargo being lost, of the driver getting killed, of the trucking company facing liability from multiple passenger car drivers for damage or injuries or fatalities resulting from the wreck. The cost every time the truck goes on the road could range from a thousand dollars to a hundred thousand dollars.

Plenty of fields are picking up pennies in front of a bulldozer.

If your trucking company goes out of business because they can't eat the loss then another firm will open and fill the economic hole.

We've had issues with hospitals going out of business lately due to COVID and other factors, and nobody replaces them. The patients go elsewhere (sometimes 50 miles elsewhere) and stress another system. It's a slow motion domino effect. The expense and risk is too much and the reward is too low.

Not directly related but we've seen issues with generic meds - generic medication has profit margins that are very thin, so manufacturers just don't make them. Then a drug is missing. That's not good.

That's usually downstream of regulatory oversight making the production cost aggressively high, which I'm not sure I mind (because safety is important), but we do often have shortages of stuff for that reason.

nobody replaces them

There are many times where they're not allowed to. Or they're prevented from entering the market prior to failure, whereas if they had been allowed, it might have been more robust to individual failures.

If you get hit by a car and end up in the ICU for three weeks

I think this is something that would be covered under "insurance" as I said above. Insurance works for cases where only a fraction of the people who pay into it every year have an event that requires it. Random trauma like car crashes only happen to a small percentage of people every year, and so it's the kind of thing that insurance is good for.

rehab for five months

This is the point where someone might be able to shop around and find rehab center with less frills for less money.

Even if you are awake and say "take me to the cheaper hospital" the ambulance is going to take you to the place you are triaged to, because if you die your family will sue the shit out of them and win.

This is a choice we are making. We could just as easily dismiss such cases as frivolous and instead have people sue ambulances for taking them to an undesired hospital.

Furthermore how do you want handle cost overruns.

Lots of industries have a way to handle this. One way to handle it is the quote for the service can have the expected price (5k in your example), and then a Not To Exceed amount (15k, or whatever the most likely highest number is), and authorization (from a spouse, someone who will agree to be on the hook for the money) needs to authorize exceeding the NTE. Another way is to just have a single price for the surgery that averages out complications. No, that is not general insurance. Most industries provide services for a set price that allows for some one-off situations and it isn't called insurance.

It's not quite clear to me that we should be spending millions of dollars to save a single person's life. Unless it's really simple/easy to do, in which case why does it cost millions of dollars?

Also, do not discount how much money each person would have in their HSA, if they put as much into it as they pay insurance. Average premium for family coverage is 25k a year. Stash all that away into a HSA, accumulate interest, and there would be lots of ready money for emergencies.

Random trauma like car crashes only happen to a small percentage of people every year, and so it's the kind of thing that insurance is good for.

It's a small percentage of total healthcare contact by number of events, but it's a huge percentage of total healthcare spending. Fundamentally seeing your doctor is at most, getting a lawyer consult expensive. The hourly rate could be high but it's reasonably throttled. Being hospitalized is buying a house expensive. It takes a lot of lawyer visits to add up to a house.

This is a choice we are making. We could just as easily dismiss such cases as frivolous and instead have people sue ambulances for taking them to an undesired hospital.

Tort reform would dramatically decrease the cost of care without upending all these other apple carts.

Another way is to just have a single price for the surgery that averages out complications. No, that is not general insurance.

This just isn't feasible with how badly things can go. If the "normal" price is 5k but the "Averaged" price is 35k we are absolutely screwing over people who have routine surgery. When stuff gets expensive it can get really, really, really expensive.

It's not quite clear to me that we should be spending millions of dollars to save a single person's life. Unless it's really simple/easy to do, in which case why does it cost millions of dollars?

Simple and easy is flexible. A lot of problems are managed by forcibly keeping someone alive while their body heals itself. This is what most hospital COVID treatment was. We can provide a short term external heart and lungs and the person's body will fix itself without our intervention then we can turn it off. We can put someone on a ventilator. A vent is "simple" - but it's not cheap.

Also, do not discount how much money each person would have in their HSA,

HSA type situations require real teeth, otherwise people will bet they won't get seriously sick and most of them will be right, but the ones who aren't will fuck the system. One bad episode of sepsis wipes away hundreds of thousands of dollars but is totally survivable.

In the U.S. we spend a lot of time and money keeping people alive we really shouldn't, but we also spent a lot of time and money keeping people alive and it works great but is reasonably expensive. A good amount of these are otherwise young and healthy and economically productive (to say nothing of the ethics). In resource strapped countries these people just die.

You also have things like heroic efforts to keep children alive, many of whom have healthy lives if they make it through whatever acute thing is happening. Might cost a few million to keep the kid alive but their parents will think its worth it and society may actually also.

Why isn't a vent cheap? Do they involve rare minerals?

To be on high flow requires an ICU and constant observation, I guess most of the cost is in personnel?

You can vent someone by hand with a bag, especially if they are sick enough to not require sedation. Horrifyingly we were doing this at times during the pandemic, and we do this all the time acutely to manage emergencies, start anesthesia and so on.

The machines automates the process and doesn't have the attention issues of a really person (or like physical exhaustion).

So yeah a huge chunk of it is personnel - the doctor (who needs to be caring for a smaller number of patients because ICU level care requires much more attention and closer eye), the nurses who need to have very tight patient to nurse ratios. Both of these need to be round the clock including weekends and holidays.

But more personnel are involved than you think - cleaning staff, people to bring up the medication and fluids, dietitians and respiratory therapists to focus in on those sides of things because they are cheaper, than having the doctor do it, unit clerks to manage angry family and paperwork, tons of mostly invisible people.

Everything in an ICU needs to be "safer"/cleaner/whatever because the patients will die at the drop of a hat.

Fundamentally its not like this could be done at 85% instead of 95%-100% for much much much cheaper, but nobody wants to get fined or sued so we spend twice as much money to go from 85-95.

This is viable for some services

Awesome. Start doing it.

What do you do when the surgery is a bit more complicated and expensive and the bill is 15k. What do you do when you have a major complication and the price is 1.5 million dollars? People would be furious!

How does the current system prevent this problem?

I agree that more transparent price information would improve the market, but that does not yet imply that the market is fit for purpose.

It's a question of market design. Markets have a specific purpose — optimize the allocation and procurement of scarce goods using decentralized decision making, but depending on circumstances, not all of them are effective at this purpose. This topic is closely related to auction theory, where e.g. a second-bid auction is better than pay-as-bid auctions.

The main troubles with market design in health care are:

  • Inflexible demand. A person who is sick generally cannot abstain from buying the good "healthcare".
  • Information asymmetry. Doctors can generate demand by recommending procedures that are not quite necessary or more expensive than necessary, but the patient does not have a chance of being informed enough to know the difference.

Due to these issues, a "free market" will lead to perverse incentives; other market designs are better at solving the optimization problem. And yes, market design = regulation.

This is correct.

I've been reading a book that comments on The Wealth of Nations in the context of the contemporary international economy, with all of the various tariffs and spaghetti regulations. The author makes a recurring drumbeat point that price information must be at the center of any market for it to function as a market at all. Without prices being totally "open source" (for lack of a better term) as well as able to change in a time frame that's short enough to accurately reflect supply, demand and baseline cost, the market will not function as a market is intended.

I do like Noah's characterization that insurers are pretty much paid a small fee to be the fall guys. They have very little control over the market for medicine. Those that do - doctors and patients, also known as producers and consumers - lack that price information component so utterly, that you can't even really call it a market. It's a weird for-profit-not-for-profit-emotion-based "exchange" of services.

My two-cents prescriptions:

  • Price transparency everywhere. The IT solution already exists to make it trivially easy to see "cost of MRI in USA" instantaneously everywhere.

  • Invent "Uber for treatment' - you can book a course of treatment at any provider within whatever geography you want. You should be able to book an appointment on your phone in a few seconds.

  • More doctors. We had a thread earlier this year about the number of doctors in the USA being essentially a cartel operation. Limited residency spots set by the AMA and not updated for 20 years and all that.

  • More doctor-by-LLM for routine stuff. 50% of "disease" in America is diet, exercise, lifestyle. I'd venture a wild guess that another 10-20% is real but routine stuff; pneumonia, flu, skin stuff, broken bones without life threatening complications etc.

  • People get to see and own their electronic health records. This feeds into the doctor-by-LLM. In fact, I could see a really awesome scenario in which people could (voluntarily) plug their electronic health records into a service, much like credit monitoring, that is always analyzing your data for deeper problems. And/or offering nudges for better health lifestyle choices.

  • Pharmacy-by-mail for a lot more stuff. I can see this not being allowed for drugs that can have really bad interactions with other stuff, or painkillers because *gestures to opioid crisis*

  • Break down state-by-state insurance fences. People aren't magically more or less healthy in Colorado, Minnesota, Georgia, or Maine.

  • Auto insurance considers your make and model and year. Medical insurance should do the same. Check-ups (for insurance purposes) annually. No survey or self-reporting. Height, weight, blood work, treadmill or other cardio fitness measurement. If you can't run, walk. If you can't walk (and aren't a paraplegic etc.) stand for as long as you can, or shuffle. Whatever. These reports go back to the insurance machine learning model to give you a quote. You pay it or you don't. If you can't afford insurance, you still know the price of the procedure down the road (see point 1)

Price transparency everywhere. The IT solution already exists to make it trivially easy to see "cost of MRI in USA" instantaneously everywhere.

30-50 percent of healthcare spending is hospital based (therefore minimal choice) and a good portion of the population is severely limited in terms of choice by geography. Furthermore people would instantly be pissed when the posted price is not what the bill says, which would be extremely common since a lot of crap goes into caring for a patient and we don't know in advance what we are going to see.

Invent "Uber for treatment' - you can book a course of treatment at any provider within whatever geography you want. You should be able to book an appointment on your phone in a few seconds.

How would this work? You can schedule with whoever you want now, but that doesn't mean they have any spots for you any time soon, it doesn't mean they take your insurance, it doesn't mean they are the correct type of doctor for you. You see things like entitled people with basic hypertension demanding to see a cardiologist for management and then burning up all the spot that cardiologist had for actually complicated cases that require cardiologist expertise. Patient's will also lie about it because they insist they need the "best care." Some healthcare systems and providers have online booking resources already, but again wait lists, and how are you planning on making doctors take everybody regardless of insurance? If you try and mandate government insurance you'll see entire specialties like Psychiatry just choose to go to cash only. OB would die as a specialty without tort reform.

More doctors. We had a thread earlier this year about the number of doctors in the USA being essentially a cartel operation. Limited residency spots set by the AMA and not updated for 20 years and all that.

This comes up all the time here and is still incorrect. Federal residency spot funding was supposedly frozen decades ago, but state and hospital specific funding has been expanding spots for years. The AMA doesn't really bother with supply restriction, their primary lobbying aims at present are actually woke bullshit and expansion of supply (in the form of midlevels). I've been banging my drum in an attempt to correct this inaccuracy for years but it doesn't seem to stick.

More doctor-by-LLM for routine stuff. 50% of "disease" in America is diet, exercise, lifestyle. I'd venture a wild guess that another 10-20% is real but routine stuff; pneumonia, flu, skin stuff, broken bones without life threatening complications etc.

Generally you don't pay the doctor to manage routine disease, you pay the doctor to manage complicated disease yes but also to know what is routine vs. complicated. Ruling out things that look very close to other things is what the training is for and something that midlevel and other non physician staff constantly fuck up. People would be furious if their family member died a preventable death because of something that is an atypical presentation or a common mimic. Physician work also involves a side helping of preventing people from hurting themselves. This includes the obvious like suicidal ideation but also things like people pursuing risky treatments, not understanding "yes the bad outcome could happen to you" and so on. Algorithmic support is not good at managing these tensions.

People get to see and own their electronic health records. This feeds into the doctor-by-LLM. In fact, I could see a really awesome scenario in which people could (voluntarily) plug their electronic health records into a service, much like credit monitoring, that is always analyzing your data for deeper problems. And/or offering nudges for better health lifestyle choices.

Much of this is actually already available now in one form or the other, although with room for improvement. Your hospital has access to your outside records unless either hospital involved makes a choice not to (well more or less). Algorithmic support tools are under investigation current but are mostly pretty poor for now.

Pharmacy-by-mail for a lot more stuff. I can see this not being allowed for drugs that can have really bad interactions with other stuff, or painkillers because gestures to opioid crisis

Depending on your insurance company they are already doing this now and they like it a lot. The why for them is a complicated interplay between insurance companies, big Pharma, and retail pharmacies. It's more convenient for patients but is seeming to end up not actually being any cheaper. It also seems to result in an increase in intentional and accidentally overdoses, drug interactions resulting in morbidity and mortality, and a decline in retail pharmacies (especially independent ones).

Break down state-by-state insurance fences. People aren't magically more or less healthy in Colorado, Minnesota, Georgia, or Maine.

Meh, no dog in this fight. Although it is worth noting that some states are healthier than others (chiefly obesity rates) and care is more expensive in some places for a variety of reasons.

Auto insurance considers your make and model and year. Medical insurance should do the same. Check-ups (for insurance purposes) annually. No survey or self-reporting. Height, weight, blood work, treadmill or other cardio fitness measurement. If you can't run, walk. If you can't walk (and aren't a paraplegic etc.) stand for as long as you can, or shuffle. Whatever. These reports go back to the insurance machine learning model to give you a quote. You pay it or you don't. If you can't afford insurance, you still know the price of the procedure down the road (see point 1)

Some insurance companies offer rebates to do this now and then will do things like sell your health data to third parties, and use nudges to say and avoid your prediabtes from becoming actually diabetes. If you very heavily peg insurance prices to health status then you'll rapidly price anyone with chronic disease out of the market. If only the healthy can get health insurance it rapidly becomes useless.

Thank you for the high effort response. Upvote upvote'd.

I won't respond line for line because, frankly, you've made me think about multiple points and I haven't come up with a conclusion yet. So...thank you!

I find a good rule of thumb when it comes to anything is "if easy answers were to be had, someone would have done them." This definitely fucks me at times. I said no to Bitcoin in 2010. Many of my friends did not.

However usually most of the time the low hanging fruit is gone before we get there.

This is particularly important to healthcare - so much money is involved that you better believe that a ton of people have tried to get in and make some money or fix some problems. They almost always end up like Theranos. Google, Apple, Amazon, Microsoft, a shit ton of PE. At best most of them manage to come in and make a ruckus before the regulatory environment kicks them out for taking advantage.

Healthcare in general is weird and American healthcare in particular is uniquely weird. There's a lot of confusion, myths, lies, and well intentioned people trying to fix a complicated problem. Sometimes it more or less makes things worse (see: the ACA) but that doesn't mean it's not well intentioned.

If you have a specific line item you want to dig into have it, it's entirely possible that I'm wrong about something or was right about it 20 years ago and the situation has changed.

(see: the ACA)

Beyond healthcare, I firmly believe the ACA is a major reason for dampened growth. For most companies - and all without outside funding - it's not possible to start paying the Healthcare tax once you hit 50 employees. The only way to scale now is to have a VC or PE firm pay your employees costs for you.

The ACA is a complicated mess, I've heard to described in a million ways but probably my fav was "a poison pill that came with an antidote...but we didn't take the antidote.

Some of the stuff was expensive but ultimately the right call (like removing lifetime limits). Some of the stuff was expensive but actually likely efficient in the long run (forcing everyone to get EMRs/EHRs).

Yeah Epic made a ton of money along the way but its improved the doctor and patient experience (although the former don't always feel that way) and simplified billing greatly.

....but it was hugely expensive. And any time someone throws regulation in on healthcare it has a whole bunch of unforeseen side effects (and foreseen and lobbied for and abused side effects). Not that other regulation is too much better.

One thing we've seen from this stuff is the death of private practice - private practices are more nimble efficient, provide care more cheaply* and are more likely to do things like charity care, down billing and all kinds of other prosocial nonsense. Basically anything you hate about healthcare is probably something your doctor is forced to do because they are an employee.

Physicians were also banned from owning hospitals relatively recently, this was for a good reason - they were abusing that power in kickback schemes and other nonsense. However the replacement is business people, they are shit ton worse because they don't understand healthcare at all and can't make good decisions, and are just as interested in kickback schemes and so on but are much better at them because they are good at business.

Both of the above were massive own goals which probably made things significantly more expensive and didn't deliver the gains they were supposed to.

*granted some of the cheapness is generated by the environment allowing them to exist.

Edit: I thought I remembered the funding for EHRs coming from the ACA but fact checking myself I'm less sure.

Edit: I thought I remembered the funding for EHRs coming from the ACA but fact checking myself I'm less sure.

Good fact check! EHR funding was a part of the ARRA, aka the Stimulus.

Hmm I could have sworn there was something about meaningful use carrot/stick being smuggled into the ACA but I'm not spending time hunting that down haha.

(like removing lifetime limits).

Wait, seriously? (goes to look it up...)

Yup, it's now illegal to offer to sell anybody insurance unless you have infinity dollars.

At this point we should just ban insurance plans that don't provide sips from the Holy Grail. The damned insurance execs may say they haven't yet found the Canyon of the Crescent Moon, but they also said they only had finite money; ultimately I think it's the right call.

[Edit: I'm trying to grouse about utopian laws vs unintended consequences, but on reread I see this comes off as snarky towards you too, and you're the best contributor in the discussion here, so I apologize and I'll shut my sarcastic ass up.]

It can be pretty easy to go over lifetime limits - if you are a sick kid you burn through all of your insurance you can ever get by age 8, and what...nothing after that? Not even if you stay healthy for 60 years?

Certainly you can consider rationing for some things, but if you do all the right stuff, have good genetics, stay healthy, you can still get hit by a car and then be unable to get any care ever again?

This is magnified by the way that charges are inflated as part of the dance of getting insurance reimbursement since those numbers are basically made up and have minimal relationship with actually cost.

Something that costs 1 dollar might be billed as 30 dollars so the insurance pays 1 dollar five cents. But if they can they'll charge 30 dollars against your lifetime limit.

Rationing is exceedingly unpopular and hard to implement in a way which doesn't immediately run afoul of some angry interest group, and all it takes is one photogenic person who would have survived or not gone bankrupt...

More comments

One thing we've seen from this stuff is the death of private practice

Why? Genuine question.

Did ACA regulations make it impossible to run a private practice?

The short version is that it's the same thing happening elsewhere in the economy - economies of scale, regulatory burden, lobbying efforts. All these things kill small businesses.

Some examples in healthcare include the usual assaults on small business, the decline of competent secretarial staff (women have careers now! That's good but... (and doctors have stopped marrying people who can be there office manager for the most part)), requirements to have EHRs (easy for a big health system to implement and buy but not an individual practice), increased documentation requirements, and so on.

In the last few years private equity firms have come in and bought out many of the remaining private practices and physician groups. The owners are getting older and ready to retire so they sell it to PE, and that is one of the few ways to be profitable in healthcare (siphoning off physician pay).

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