Why Defensive Medicine Is Here to Stay

For the past 35 years individual states have been addressing the problem of medical malpractice lawsuits in disparate ways with varying degrees of success. Lately, physicians have partnered with legislators and lawmakers to address skyrocketing medical malpractice insurance premiums.  So far, little has been accomplished.  Until the situation is rectified, if it will ever be, physicians will continue to do whatever is necessary to avoid malpractice exposure. 

The primary tactic used by physicians to avoid medical malpractice lawsuits is defensive medicine. In addition to enormous malpractice premiums, over $200,000 annually for some surgical specialities, that continue to increase year after year, the practice of practicing defensively has also saved insurance companies a lot of money. Physicians are avoiding lawsuits but still must pay exorbitant premiums. Insurance companies are the beneficiaries of this.  Any objective analysis of the problem would conclude that the entire system is dysfunctional.  And there are no easy solutions.

So rather than try to address the solution to a seemingly unsolvable problem, let's talk about one spinoff to this problem: defensive medicine.

Defensive medicine is well-known and pervades all aspects of medicine. Every physician will admit to doing medically unnecessary tests to satisfy a patient's request or demand.  Although, this is certainly not a new phenomenon, it certainly is now a more pervasive phenomenon. The reason is is now done more frequently is to avoid any possibility of a missed diagnosis and a bad outcome, and to avoid angering the patient.  If a diagnosis is made and a patient is happy, even if a bad outcome ensues, studies show that patients are more satisfied and are less apt to sue.

The medical necessity of tests although frequently scrutinized by utilization and quality assurance managers, really boils down to a judgment call by a physician.  Although it is not necessarily appropriate medical practice to do marginal tests, especially if those tests can, in and of themselves, be dangerous, such as the high radiation dose of CT scans that can cause high doses of radiation, for every test deemed "unnecessary" there is an anecdotal story of how it caught that small tumor that saved a patient's life.

It comes down to acceptable medical-legal risk. When a physician examines a patient with a head injury and clinically clears that person without doing a CT scan, that physician might be practicing prudent cost-effective medicine, buy may not be comporting with the acceptable standard of practice. One type of head injury, for example, has the patient appearing sporadically lucid and asymptomatic.  That head injury is an epidural hematoma. If one of the physician's patients has an epidural hematoma, is not scanned, and dies there is a high likelihood of a lawsuit, especially if that patient asked for a scan and the physician refused. Although that physician might win the case if the jury can be convinced of the veracity of a clinical rule-out, the physican will still have to endure years of stress and anxiety, and disruption to their practice.  No physician wishes to face this spector.

The paradox and conflict that has arisen, particularly in light of Obamacare is if the government mandates physicians to follow very specific clinical guidelines that obviate tests for many clinicial presentations, the government also needs to put into place certain laws that protect physicians from lawsuits when bad outcomes occur even when practice guidelines are meticulously followed.  

What is presently happening is that the Obama administration has expressed its desire to cut down on what they deem unnecessary tests. Using the prior example, if a patient has a minor head injury and gets a head CT scan and it is positive, then, the regulations would endorse the ordering of that test. However, if the CT scan is normal government regulations with punish the physician or facility by refusing to make payment for the test -- all in the name of preventing excessive testing. However, the government doesn't want to assume the increased medical malpractice liability risk that is certain to occur with those kinds of policies.

Furthermore, a new phenomenon is contributing to an increase in defensive medicine: governmental overreliance on patient satisfaction surveys. Physicians are now required to consider the opinions of their patients with regard to their visits, and thus, they will do their best to mollify their patients -- and that will increase costs vis a vis defensive medicine, some studies, such as the 2008 Congressional Budget Office study, say by more than $200 billion a year.

So let's say that physicians cut back on tests, patients are harmed, and medical malpractice lawsuits increase, would there be justice for the patient?  The current system doesn't really provide optimal justice for patients who have been truly harmed by medical malpractice. It takes several years for a lawsuit to settle or find its way to court.  And in many circumstances, the settlement is not commensurate with the damages, or much of the settlement/judgment goes to the plaintiff's attorney.

And, if a physician is forced to suffer a time-consuming medical malpractice lawuit, does this mean that the physician will modify his or her practice?  Studies say no.  It us unusual for a physician to modify or change his practice, for the simple reason, that the way he or she has practiced medicine has worked previously to hundreds if not thousands of patients.  Plus, there's no mechanism to have the lessons learned from litigation be applied to the practice of a medical specialty.

Now let's consider if there is anything that would induce physicians to discontinue their practice of defensive medicine.  What about complete immunity from lawsuits if cookie cutter procedures are meticulously followed by physicians?  Nice idea, but completely unrealistic for several reasons.  First, cookie cutter paradigms of evaluation and work-up have been repeatedly demonstrated to be flawed.  The human body is not a machine. It is unpredictable and uncertain.  So many medical conditions have unusual or atypical presentations and manifestations.  So many conditions will not be diagnosed if this approach is taken.  Second, medical malpractice is actually real.  There are many incompetent physicians and other health professionals practicing.  Thus, there needs to be a system in place to find them and educate them if possible -- or discontinue their practices if necessary.

So, how can a system be created that both protects doctors from frivolous lawsuits and at the same time defends the right of a patient to sue for medical malpractice?  Again, there are no pat answers to this question.  Some states are exploring alternatives to the current medical legal tort system.  Ideas that have been discussed include:  tribunals, panels of medical and legal experts who review pending litigation files for merit; alternative dispute resolution, where cases are removed from the scrutiny of lay juries and courts, health specialty courts, where the judge receives special targeted training in medicine and medical malpractice tort law; physician legal defense funds, that would replace physician malpractice insurance premiums.  All these ideas have pros and cons.  So far, no ideal solution has emerged.

Some of these ideas, if implemented, might impact and improve defensive medicine from a medical malpractice standpoint. However, physicians can't be expected to lower costs with best practices and give their patients whatever they want. New rules under Obamacare make it abundantly clear that in the very near future patient satisfaction, as measured by surveys, and physician reimbursement will be linked. If that occurs, any potential gains from medical malpractice reform will be lost.

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