Lawsuits are more of an emotional issue than a financial one

Doctors love to talk about tort reform – states passing laws to put limits on awards such as non-economic damages for harms such as pain and suffering, and on the legal process of suing a doctor for malpractice. They speak of defensive medicine – the practice of ordering extra tests, treatments, and days in a hospital to cover their medical-legal butts.

Texas passed a comprehensive tort reform law in 2003 that has resulted in an approximately 30% decrease in doctors’ malpractice insurance costs. These savings are passed along to Texans because Medicare includes malpractice insurance costs in its formulas on doctors’ fee schedules, and most private insurance companies calculate their rates as a percentage of Medicare. The larger effect in Texas has been to attract more doctors to the state including underserved areas.

It’s amazing how malpractice insurance premiums vary across the U.S. In 2004, annual premiums for OB/GYNs were nearly $200,000 in Florida and less than $20,000 in Nebraska. I can’t believe this reflects 10 times higher quality care in Nebraska vs. Florida. I think it speaks volumes about the cultures and expectations of the citizens of those states.

A study in 2010 estimated that the total cost of defensive medicine is $55.6 billion a year, which is only 2.4% of all healthcare costs. A companion study surveyed physicians and found that physicians’ fears of being sued were not assuaged very much in states with significant tort reform compared to those without.

For most doctors, the threat of lawsuits is more of an emotional issue than a financial one. Being accused of malpractice is tough enough in the first place. The vast majority of doctors do the best they can with uncertain information and difficult situations knowing that no matter what they do, some patients will have disabilities and die from their injuries and diseases. An endless list of hindsight accusations can be made in tragic outcomes. Also for physicians, there is no forgiveness in medical malpractice if there is any kind of settlement. Any doctor who’s been sued has to relive the experience for the rest of his career every time he fills out a hospital or insurance application.

The disconnect between defensive medicine and lower healthcare costs exists because America hasn’t addressed the true underlying healthcare inflation issues: risk and cost. If a 36-year-old female patient sees me for sharp chest pain occurring over the last two days and she has no unusual medical history, the science of medicine tells me her chest pain is very unlikely to be caused by blockage in the arteries of her heart, but it’s still a possibility. A crucial distinction is that low risk doesn’t mean no risk.

What do you want me to do with this patient? I could admit her to the hospital for a series of multi-thousand dollar tests that will probably be normal.  Or I could reassure her she’s probably fine, advise her to take some medicine for comfort, and tell her to come back and see me if she feels worse. In this scenario there is an extremely small, but not zero, chance she will be injured or die in the next few days. And there is no primary care research to tell me what those risks really are.

Therefore, to really bring down the cost of American healthcare, two questions must be answered by the public. What risk is so low is just isn’t worth pursuing? How bad must the bang-for-the-buck become for a test or treatment to become cost prohibitive?

Until these questions are answered, American healthcare costs will continue to outpace the general inflation rate and wage will remain stagnant, doctors will still fear the medical-legal boogeyman, and the great American healthcare irony – we spend the most but get the least, will only get worse.

Richard Young is a physician who blogs at American Health Scare.

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  • Darrell White

    I agree. The specter of a malpractice case and all of the emotional trauma it entails is more than enough incentive to order that admission and order those tests. It’s high time the pundits and others make the distinction between malpractice INSURANCE reform (limit awards in order to reduce med-mal insurance costs) and true malpractice TORT reform (change from our punitive, “gotcha” system). 

    “Malpractice Reform = Healthcare Reform

  • Anonymous

    I completely agree with you.  When 75-99% of doctors will get sued during their careers, depending on their specialty, the doctors become quite risk adverse. Being found “not liable” in a malpractice suit gives a doctor little glory since he or she has endured a great deal, these words carry little glory.

    Since doctors in states with malpractice damage caps and those in states without them fear lawsuits and practice defensive medicine to the same extent (as per the studies you reference), why not consider something different?

    Why not consider “TrueShouldn’t our goal be to provide a safe and supportive resolution process that values transparency and early disclosure of medical errors for patients, doctors, and health care organizations so that physical, emotional, and financial stress for all parties will be minimized and so that we can learn from our error and near misses to improve the safety and quality of our healthcare system?
    A formal disclosure program can be an alternative to our current tort litigation system which will meet the needs of:
    A.   patients for full disclosure, understanding, and in appropriate cases, an apology and timely compensation;
    B.   physicians to proactively address issues and communicate with their patients in a safe and effective way so  that both the physician and patient can gain closure;
    C.    health care organizations to learn from errors and near misses to improve systems and processes in healthcare delivery; and
    D.   society to simultaneously increase patient safety and reduce costs.

    We can support both doctors and patients while improving our healthcare system.  Not only are we spending $55.6 Billion in defensive medicine, we are spending $17.1 Billion paying for care related to medical errors.

    • admin

      Dr. Scott,

      I am open for any alternative mediation process. I also believe there are some savings to be gained from the safety movement, though not as much as others believe. Even if malpractice cases go through an alternative dispute resolution pathway, I still want to know: what am I supposed to do with a young woman with chest pain? Am I allowed to use judgment and probabilistic decision making? If there is not an agreement between physicians and the general public that there are some risks that are so low it’s not worth pursuing, then I’ll still be found guilty of malpractice when the very low risk patient has the rare bad outcome.

      • Anonymous

        I understand what you are asking and the public does need to be educated. The American public will never be like that of England, however, where the public accepts significant rationing of healthcare. When the likely yield is low, the study is not offered even though some cases will be missed (such as coronary disease in the young woman). Likewise, where the benefit is not deemed great enough given limited resources (such as dialysis in a 70 year old with significant comorbidity) people accept decisions based on probabilities and limited resources.  

        That being said, we are heading toward protocol driven medicine which may be helpful in improving quality of care. Protocols and guidelines will not be helpful, however, as the standard of care in medical malpractice cases because opposing attorneys can always argue to a jury that “this case did not fit the protocol” and thus, a modification to the protocol or a different protocol was really indicated for this particular case.

        In contrast, the use of judgment and probabilistic decision making (or judgment and protocol) makes more  sense in the setting of alternative dispute resolution because doctors (and hospitals) can sit down with patients/families and explain their decision making, and why the protocol was used (without the benefit of hindsight). Maybe the doctor feels he or she used the right protocol (young woman with chest pain merely has the office history and physical with EKG, for example) or maybe the doctors expresses that she wishes that she would have considered a vague symptoms more seriously using a different protocol in this case. Would the latter be negligence? An expert for the plaintiff would say, “yes” and one for the defense would say “no” and we would have a battle of the experts with the jury deciding which is more “believable.”

        With the alternative dispute resolution collaborative conference, the authentic communication as to these decisions, write or wrong, is extremely helpful to both patient and physician. Physicians will quite often feel they should have done better and will second guess their decisions. Patients are often surprised to see physicians upset about bad outcomes.  Patients can feel the care and remorse from physicians (error or not), as well as empathy from physicians which helps them understand that their physicians has really done his or her best to make good decisions regarding their care. Patients begin to truly understand that their physician is human and that he or she is doing his or her best (in the vast majority of cases). Patients are often quite forgiving when given this kind of opportunity. That is not to say that compensation is not discussed in appropriate cases, it is just to say that the conversation is not driven by anger but instead by need.

        I hope this helps clarify the different result of judgment and probabilistic decision making for the scenario you presented through the tort system and through alternative dispute resolution.

  • Kathy Morelli, LPC

    How true this is. 

  • Anonymous

    This is why everyone should have their own disabilty/life insurance.  Then malpractice could just go away.  But I know that won’t happen–nothing left for attorneys in that case.

  • Simon Sikorski MD

    Just wondering how many malpractice lawsuits are simply based on lawyers inciting patients by tapping into their emotions. Sales 101?

    I agree, anytime you get a negative letter, comment, or even a look … we are human and will take it personally. Over our lifetimes we all just become a little more skeptical each time it happens. I just hope docs are able to cope with all these pressures their facing right now…malpractice only being one of their pressures.   

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