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Defensive medicine: A solvable problem

Physicians’ fear of lawsuits overshadow actual risk of being sued

Defensive medicine has contributed to the rising cost of healthcare in the U.S.; that much is certainly not news. But two recent reports suggest the true scope of the problem may be somewhat exaggerated, and the solution not too complex.
Medscape’s latest survey, “Malpractice Report: The experience of getting sued,” which queried 3,480 US physicians across 25 specialty areas, found that about 40 percent had been named in a lawsuit. The most common reason for the litigation was failure to diagnose a disorder (35 percent), followed by failure to treat (17 percent).
The survey also asked respondents about the kind of advice malpractice defendants were given by other physicians. Among the remarks: “Document more often, more thoroughly… get rid of rude, demanding, noncompliant patients… practice more defensive medicine.” One advisor went so far as saying: "Don't assume ANYTHING!! If it hurts, CAT scan it. If it hurts between the nose and the toes, consider it a heart attack and stress-test everyone from 9 to 90!”
[See also: Malpractice not cause of healthcare cost.]
In light of such advice, it’s no surprise to find many physicians ordering unnecessary procedures so they don’t miss even the most unlikely diseases. To quantify just how much such defensive diagnostic testing may be costing the U.S. healthcare system, Jackson Healthcare commissioned a Gallup poll.
The 2010 survey, based on phone interviews with 462 physicians, found that doctors believed 26 percent of overall healthcare expenses could be attributed to defensive medicine. And nearly 3 out of 4 respondents said they practiced some form of defensive medicine in the past 12 months. In 2010 dollars, such lawsuit-inspired medicine may have cost the nation $650 billion.
While the threat of lawsuits no doubt drives defensive medicine, an analysis published in the August issue of Health Affairs suggests that physicians’ fear of a lawsuit may overshadow their actual risk of being sued.
Emily Carrier, MD, of the Center for Studying Health System Change, and associates found that 29 percent of physicians who had a high level of concern about getting sued by a patient with lower back pain, for instance, would order imaging while only 17.6 percent doctors labeled as having “low-concern” would do imaging.
But when researchers tried to find a correlation between physicians’ propensity to order tests with the actual risk of a malpractice lawsuit—as measured by award caps and a risk index based on how many malpractice claims were filed and award amounts—they didn’t find one. In other words, clinicians were basing their decision to run too many tests on their fears rather than the relative threat of being sued.
“Reducing defensive medicine may require approaches focused on physicians’ perceptions of legal risk and the underlying factors driving those perceptions,” according to Carrier and her colleagues.
[See also: Malpractice payments drop, but errors don’t.]
Asked how defensive medicine affects the bottom line for hospitals and medical practices, Nicholas Romanello, JD, general counsel for the healthcare district of Palm Beach County, Florida, said defensive medicine “is really a cost driver.” These doctors are ordering more tests, referring more patients to specialists, ordering more meds, says Romanello. “And now that Medicare and Medicaid are transitioning from a fee-for-service model to a capitated payment structure, you’ve got to manage your costs more effectively.  It’s going to be more challenging if you have doctors worrying about the next lawsuit.”
One partial solution to the defensive medicine debacle may be tort reform measures that put financial caps on non-economic malpractice settlements. Romanello explained that in Florida, caps were put into place in 2003. Over the years, malpractice premiums have decreased by more than 40 percent. Romanello believes such caps also reduce the incentive to practice defensive medicine.
Jeff Lobosky, MD, a neurosurgeon and director of the neurotrauma ICU at Enloe Hospital in Chico, Calif., is not quite sure about that. He noted that the effect of tort reform on defensive medicine varies widely depending on who you ask. The Congressional Budget Office looked at defensive medicine, concluding: “If you did tort reform similar to what was done in California, putting caps on pain and suffering…. it would save about $6 billion a year.” On the other hand, the American Association of Orthopedic Surgeons estimated that tort reform would save about $650 billion a year.
“All of us agree that our current tort system is broken. It doesn’t protect good docs from frivolous lawsuits… nor does it protect patients from diligent care,” said Lobosky.
Possible solutions include a system that’s in place at the University of Michigan. If a patient there suffers an adverse event while in the hospital, the risk management team investigates. Whoever made the medical mistake is then required to tell the patient what has happened and apologize. The University offers the patient a relatively fair, equitable settlement, explained Lobosky.
Contrary to what many clinicians would expect, to date such full disclosure has actually reduced the number of lawsuits filed.