Friday, October 16, 2009

Tort Reform vs Defensive Medicine: Place Your Bets!

In my 20 years of medical practice, no issue provokes more physician angst than the unfair medical malpractice situation we physicians endure. It is the wound that will not heal. Physicians pursue one primary strategy to protect ourselves at the expense of our patients and society; we practice defensive medicine. Defensive medicine is omnipresent and burns up billions of health care dollars that we need so desperately.

Defensive medicine, I strongly believe, is practiced by nearly every physician in the country. If you suspect that this is hyperbole, ask your own doctor, although you may find him defensive about the subject. It’s not actual lawsuits that are suffocating doctors; it’s the fear of of being sued. The aura of litigation hovers in your doctor’s office during your office visits. It's like carbon monoxide. You can't see it or smell it. But, it is real and it is potent.

Attorneys and others reject our defensive posture. They argue that we should simply perform tests and treatments that are medically necessary. Good medicine, they claim, will protect us. Their truth, however, will not set us free. A physician who has a dagger raised above his head cannot ignore this threat when advising patients. ‘Good medicine’ won’t stop a case from being filed against an innocent doctor. A system that can ensnare an innocent physician for months or years is patently defective. We practice defensively as a filter to keep us out of the medical arena in the first place. If we are ultimately released after discovery and depositions, from a case that should never have involved us, we don't agree that our belated dismissal is evidence that the system is working.

Casey Fiano at American Issues Project blames avaricious trial lawyers for forcing physicians to become diagnostic testing machines. I don’t. While I agree that many trial lawyers have lost sight of the noble mission of their profession, they are operating within a corrupt, but legal system. We need new rules. If football games had no rules or referees, then every game would become a melee. Would this be the players’ fault?

Overlawyered points out that many unnecessary hospitalizations result from physicians who want to minimize their legal risk. Do patients want this? Ironically, a hospital, a big building stuffed with germs, should be the last place that any patient wants to spend a weekend. Of course, once in the hospital, defensive medicine goes ‘viral’, as consultants carve you up according to their organ of interest.

WeStandFirm points out that none of the players supports defensive medicine. The ordering physicians don't like it. The radiologists reading these unnecessary scans don't like. Insurance companies don't like it. Patients don't like it. Yet, we physicians practice it every day.

Happy Hospitalist summarizes the situation with simple elegance. Rarely will a patient get only what they need to make the diagnosis. They get far more than is necessary. You can call it good medicine. I call it fear.

I remember our athletic coaches who always emphasized how important defense was. Defense wins ballgames is still a classic sports maxim. This strategy, however, is wrong for doctors. Medicine should not be a contact sport. When defensive medicine triumphs, then patients lose. Does the public want a system that forces physicians to order tests and medical care that it doesn't need? Tort reform, while imperfect, can help heal the wound that harms patients, incinerates a fortune of money and abuses the medical profession. Aren't these 3 defects worthy of reform?

10 comments:

Anonymous said...

This is a great statement:

"than the unfair medical malpractice situation we physicians endure."

What's unfair about getting to put your case on before a jury, the best case you can make?

" It’s not actual lawsuits that are suffocating doctors; it’s the fear of of being sued."

Why should we make wholesale policy changes based on alleged responses to a fear when the fear and the response may not be rational?

If you don't want to be dismissed after depositions and discovery - volunteer to go under oath to explain what happened and give all documents pre-suit. It's that easy.

Anonymous said...

" Tort reform, while imperfect, can help heal the wound that harms patients, incinerates a fortune of money and abuses the medical profession"

We've had it for 30 years. Has it done those three things?

Evinx said...

Anonymous
I assume you are the same Anonymous commenting on Dr Kirsch's previous post.

First, legislation was introduced for tort reform without caps - see Congressman Tom Price attempt to do so. Also see, Newt Gingrich, who has also spoken out on reform without caps.

To believe that drs do not practice defensive medicine is absurd. Just ask them if you seriously have doubts.

Look what happened based on John Edwards' "junk science" claims (Cerebral Palsy could have been prevented had a pregnant woman had a C-Section). Such claims are nonsense. See the case about the Campbell child.

Furthermore, see what happened to the rate of C-Sections as a result.

And btw, it is rather inexpensive to file lawsuits (be it medmal, auto, mold, etc). Trying a case is where it gets expensive. Visit attorneys as a prospective client + see how all they talk about is "settlements." Then tell them how you will insist on a trial + you can be sure you will hear words to the effect, "your case is no slam-dunk" and better to get half a loaf than risk losing.

95% of civil cases ultimately settle. And be it medmal, autos, slip + fall, etc, that is where the money is. And that is why drs HAVE to practice defensive medicine - they simply cannot devote the time to deposition after deposition with all the attendant time to prepare, discuss, etc.

Some reasonable tort reform is needed and imo, Congressman Price's legislation (which I suspect you never heard of) is an excellent start. Too bad Pelosi and company put the kabosh on it.

Anonymous said...

"First, legislation was introduced for tort reform without caps - see Congressman Tom Price attempt to do so. Also see, Newt Gingrich, who has also spoken out on reform without caps."

Introducing a bill and that bill going anywhere are two different things, aren't they. Tell me, where are those bills today? By the way, federal malpractice bills mean little to individual doctors since those are state law cases.

"To believe that drs do not practice defensive medicine is absurd. Just ask them if you seriously have doubts."

Just ask teenagers if you think their curfew is too early if you want proof that curfews are too early. Means little either way.

"Look what happened based on John Edwards' "junk science" claims (Cerebral Palsy could have been prevented had a pregnant woman had a C-Section). Such claims are nonsense."

Since you haven't read the records in a single case of his, how would you know? One can certainly not make the blanket statement that cerebral palsy can NEVER result from negligence during birth. Well, I guess you can, but it is not based in any fact.

"And btw, it is rather inexpensive to file lawsuits (be it medmal, auto, mold, etc). Trying a case is where it gets expensive."

More foolishness. Have you ever handled a lawsuit? The discovery phase is where it gets expensive, and that starts immediately after filing.

"95% of civil cases ultimately settle. And be it medmal, autos, slip + fall, etc, that is where the money is"

Again, wrong. If you want to make truly big money in law (although if you want to make truly big money you'd be better off in business), you try cases and you get a reputation for trying them. Settling is nice, but you can't count on it. Insurers are not inclined to just roll over anytime someone files a suit.

"Some reasonable tort reform is needed and imo, Congressman Price's legislation (which I suspect you never heard of) is an excellent start."

Reasonableness is in the eye of the beholder. Frankly, the only legitimate non partisan criticisms of our system that have merit are those that say it takes too long and there are too many costs. Now, if you can find a proposal that will pay victims sooner and will result in insurers reducing their administrative costs, I'm all ears.

As to Congressman Price, where is his bill currently and how long has it been there? You're right, I don't keep up with every bill filed by all 435 members of Congress.

LeisureGuy said...

This article by an MD includes this information:

"In 2006, researchers from Harvard published a study in the New England Journal of Medicine that was designed to avoid the limits, and the biases, of prior research. What they found kills the notion of frivolous lawsuits. It suggests that most people who sue are suing for good reason.

"The researchers reviewed nearly 1,500 claims from five different malpractice insurers. First, they reviewed the merits of each case by determining whether a patient was injured and, if so, whether it was due to physician error. Most of the suits were not frivolous: Almost two-thirds of cases involved errors by doctors. Second, they followed each claim to see if the legal system acted appropriately. The majority of the time, it did. Seventy-three percent of injuries in which a doctor committed an error resulted in payments. Seventy-two percent of cases in which there was an injury not due to physician error did not result in payment. Those conclusions do not paint the picture of a medical-legal system burdened by ambulance-chasing lawyers and their litigious clients.

"Instead of a swamp of frivolous lawsuits, what the data shows is a system that functions. Insubstantial claims tend to collapse, while the medical industry usually opts to pay off injured patients instead of going to trial. The doctors and the insurers choose to fight to win when they think they can, and when there is enough money at stake, and usually do win."

Until and unless that study is refuted, I think it stands and contradicts the various anecdotal accounts that constitute the arguments of those wanting tort reform.

And, as pointed about in an earlier comments, many states now have tort reform---has it helped?

Anonymous said...

As a realist, I suspect that tort reform will only reduce defensive medicine by a smaller proportion than proposed. Why? It is because how physicians and all providers in the USA are trained. We are trained to not accept any failure rate. Patients, families, and providers can only say "I'm sorry I didn't get that test earlier," who is to blame?

WHat we need is a national effort to say - to the public and everyone: "here are the suggested guidelines. Expect 5- 15?% of patients to have missed diagnoses, failures, and angry families." Instead we focus on recommendations and cost effectiveness (the positive).
Yes, we will always over test and over treat because we are afraid of tort, but also because: this is how we are taught, this is how we are paid, this is what everyone expects, and because we cannot possibly imagining "not doing everything for our patients."

Lawsuits are only part of the "American Way".

Anonymous said...

All I can say is that if I am ever sued again, I will fight it tooth and nail to the end! I will win, and then counter-sue for legal malpractice. And, I advise that all physicians adopt this strategy. It will put an end to this nonsense. If we do this, we will put these unscrupulous attorneys out of business for good. It is about time that the lawyers who have perpetrated a criminal act on the medical profession find out what it is like to have the gun to their heads.

We are mad as hell, and we are not going to take it anymore!

Ron Miller said...

Is ordering unnecessary tests on patients to protect yourself medical malpractice? It would seem to me that there would be some commentary about this: we have to put our patients at risk to protect ourselves against and event for which we have insurance. Isn't it necessary in any doctor post about defensive medicine to confront this issue head on?

PrivatePigg said...

Defensive medicine is only practiced when doctors have not diagnosed the problem. If a doctor has figured it out, then no further tests will be performed - and none will be needed to CYA.

Thus, 'defensive medicine' is only practiced when the doctor has not figured out the problem, but is worried that the patient will be able to prove that he SHOULD have figured out the problem - as determined by the local standard of care and testimony from other doctors in the same locale and practicing in the same field.

Oh, how terrible.

The medical malpractice "system" is no more unfair than any other legal "system" for professionals. Everybody is held to the standard of care of the other like profesionals in the area. Expert testimony is required. Both sides can state their case. Burden is on the plaintiff.

The difference is that medical errors leave people dead, or maimed, or seriously injured. Other professionals don't have the same problem.

PrivatePigg said...

"If we are ultimately released after discovery and depositions, from a case that should never have involved us, we don't agree that our belated dismissal is evidence that the system is working."

And why not? You get sued, you are vindicated. How else would you like the system to work - judicial fiat that you cannot be sued?

How would a tort reform / cap on the damages prevent you from "being sued...and then released" after discovery?

By the way, if you get sued, and lose, the suit was not frivolous. Thus, what justification can there be for limiting damages? The jury is in the best place to decide based on the particular facts of the case and other local conditions - not bureaucrats.

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