How defensive medicine is akin to the war on terrorism

From my interview with Andrew Thompson the other day, the issue of a medical malpractice crisis was raised.  Mr. Thompson averred that such a concept is pure myth, a spook story older docs tell young interns around the campfire at night.  And he may be right.

In a paper from the Journal of Healthcare Quality, researchers at Johns Hopkins demonstrated, using data from the National Practitioner Data Bank, that “catastrophic claims” (those awards in excess of $1 million) totaled about $1 billion per year, a figure that represents just 0.05% of total national healthcare spending in this country.

Now one could retort that “catastrophic claims” account  for only 36% of total claims over the time period (unduly neglecting the effects of smaller claims up to $1 million) or that the study doesn’t include the settlements made with hospitals and healthcare corporations, only individual physicians.  But the data are eye opening nonetheless.  Total number of med mal cases have been dropping precipitously over the past ten years.  The costs of waging a medical malpractice case are prohibitive for most law firms (discovery, expert witnesses, contingency based fees, physicians win 70% of cases that go to trial, etc).

So why is tort reform still the linchpin piece of alternative national healthcare reform plans?  Why do the GOP and physicians organizations continue to shout from the rooftops that medical malpractice represents the single biggest threat to American healthcare?  Why has the refutable become dogma in the minds of otherwise intelligent people?

And what do physicians do to avoid the threat of this med mal crisis?  We over test.  We over treat.  We practice defensive medicine.  This is the true monetary cost of med mal fears.  In the paper I alluded to above, defensive medicine contributes upwards of $60 billion to total healthcare costs.  If the fear is exaggerated, why do we continue to order CT scans on every single patient who complains of a headache?  Why does every post op patient with a HR over 100 get a CT angiogram to rule out pulmonary embolism?  Why are all these dehydrated nursing home ladies with coffee ground emesis getting upper endoscopies every other year?  What are we afraid of?  Why do we continue to perpetuate the practice of fear?

It’s been twelve years since the Twin Towers were taken down by a ragtag band of nihilists.  Since then we have spent trillions of dollars to avenge that fateful day.  We launched wars.  We invaded a country that had nothing to do with 9/11.  We ventured into the “dark side” and institutionalized barbarities such as pre-emptive war, rendition, indefinite detention in black site prisons, torture, and secret, unaccountable drone strikes against alleged “suspected” militants across the globe.

The world is now our battlefield.  Zero tolerance for terrorism has become a bipartisan consensus.  Risk is not something to be managed judiciously; it must be eliminated altogether.  And so we end up justifying the unimaginable — waterboarding, locking people up in a Caribbean island cage indefinitely without charges, due process free state assassinations, etc.  And now we are waging full blown drone warfare against targeted “militants” across the globe, shrouded in complete and utter secrecy.  Certainly this form of state sanctioned violence mitigates the political fallout from soldiers being shipped back to America in coffins.  But the blowback from the Muslim world is unquantifiably immense.

And what is the actual threat of terrorism?  According to the Global Terrorism Database, 30 Americans have been killed in terrorist incidents since 9/11/01.  And this includes non-Islamist attacks.  According to Ronald Bailey and

Taking these figures into account, a rough calculation suggests that in the last five years, your chances of being killed by a terrorist are about one in 20 million. This compares annual risk of dying in a car accident of 1 in 19,000; drowning in a bathtub at 1 in 800,000; dying in a building fire at 1 in 99,000; or being struck by lightning at 1 in 5,500,000. In other words, in the last five years you were four times more likely to be struck by lightning than killed by a terrorist.

Similarly, the threat physicians face from malpractice litigation is probably far overrated.  And we fail to appreciate our own unintended “blowback” from the defensive medicine mindset.  Our patients are subjected to unnecessary, potentially harmful, testing.  We end up referring them for unnecessary invasive procedures.  We compromise the sacrosanct doctor/patient relationship by adopting an adversarial, wary posture toward these people who come to us for answers and help.  We are so cautious and worried about being sued that we put our own interests above those of the patient.

It’s sad.  I fall into the same trap myself on occasion.  And I fear that defensive medicine has transcended being simply a reaction to a perceived threat.  At this point it has become reflexive, institutionalized behavior.  We order that CT scan not because we are worried about being sued anymore; it simply has become second nature.  Just as we now take off our shoes at the airport without even thinking about why and whether it actually does any good.

Risk is ever present, every day in both medical practice and counter terrorism.  It lurks on the periphery.  The mistake is acting as if risk is something we can eliminate.  The more open we are, the more we acknowledge the reality and inevitability of rare breakdowns, the more likely it is we can implement strategies to minimize risk occurrence over time.

Jeffrey Parks is a general surgeon who blogs at Buckeye Surgeon.

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  • Johanne Von Kay Raus

    I am not totally sure what you’re advocating… being a victim of terrorism is OK if its less than the chance of being struck by lightning? Your argument that catastrophic claims make up a small percentage of ‘the national healthcare budget’ is even more puzzling… as if that is somehow comforting. Most physicians are worried about frivolous lawsuits, not lawsuits per se–and that makes sense. Indeed we should demand extreme precision from the same profession that advocates ‘better a hundred guilty men go free than one innocent suffer.’ We worry about both terrorism and lawsuits (even if the risk is unlikely) because they are very awful (but seemingly preventable) events. I guess the next time you find yourself in the courtroom for any reason (legit or frivolous) or with your legs traumatically amputated from an IED you can take solace in the fact that statistically other things were more likely to happen and you’re content to live in a society where we do nothing about either.

    • BuckeyeSurg

      It’s a very simple argument: Sometimes we cause more harm and foster unintended consequences in our attempts to eliminate all forms of risk entirely. Defensive medicine and the War on Terror being two illustrations of the idea……..

      • Johanne Von Kay Raus

        Great, but that’s not really what you’ve written. You argue that there isn’t a significant med-mal problem because large payouts are unlikely, that advocates for med-mal reform (like the “the GOP and physicians organizations”) are misguided, and that instead, we should just not worry and not practice defensive medicine (as if the practice of defensive medicine was a choice of whether or not to poison a patient).

    • trinu

      Sometimes our attempts to reduce the risk of something bad fail and/or increase the risk of something else just as bad if not worse.

  • Disqus_37216b4O


    “It’s been twelve years since the Twin Towers were taken down by
    a ragtag band of nihilists.”


    Seriously, dude?

    I can’t take seriously ANYTHING written by someone who would write something as silly as that.

  • PoliticallyIncorrectMD

    The issue with frivolous lawsuits has little to do with the number of “catastrophic claims” paid. The problem is that even those cases that are won by physicians or settled outside of courts are stressful, lengthy, costly and interfere greatly with one’s personal and professional life.

  • Dave

    The stats may reveal that malpractice is not a massive part of healthcare expenditures, but that 0.05% number says little about the personal realities faced by all too many physicians. It also doesn’t tell us what the numbers would be if people did NOT practice defensive medicine, much like the terrorism numbers don’t tell us how things would have played out if we had simply turned the other cheek after 9/11. The numbers may make a case against tort reform as a panacea for cost reduction, but that’s about it.
    There’s also the fact that the payout numbers don’t reflect the costs born by physicians such as higher premiums, personal anguish, wasted time, etc., when they are named in a lawsuit. Many physicians get named in hastily-filed suits only to be dismissed later — something you’ve no doubt experienced — but have to carry that record around with them forever.

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