23 September 2009

Malpractice and Defensive Medicine

A thoughtful and (dare I say it) balanced look at medical malpractice in today's NYT:

Malpractice System Breeds More Waste in Medicine - NYTimes.com
The debate over medical malpractice can often seem theological. On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive. On the other side are those liberals who see malpractice reform as another Republican conspiracy to shift attention from the real problem. [...]

The direct costs of malpractice lawsuits — jury awards, settlements and the like — are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn’t mean the malpractice system is working.

The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.
The cost of malpractice is a tough metric to measure, both economically and epistemologically.   I was interviewed for an article on this topic in the WSJ a couple of weeks ago.  I wound up not getting quoted (so much for fame, thou cruel mistress), and I think part of the reason was that I wasn't able to give an example of a case where fear of malpractice was clearly the sole driver of a particular expense.

"Oh, come on, doc!" I can hear the myriad of commenters howling, "what about that 37 year old with no risk factors and really atypical chest pain that you admitted the other day?  If that wasn't 'defensive medicine,' then what is?"

Yes, you are right: it was defensive in the extreme.  But what was the motivation?  Was it fear of getting sued?  Yes, and more.  Doctors are a risk-averse bunch, ER doctors especially.  But there are so many risks inherent in the practice of medicine that it's really hard to sort out which risk drove which intervention, and to what degree.

To take the above example a little further, mostly I was afraid of being wrong.  My assessment of him was that the likelihood he was having any sort of a life-threatening emergency was exceedingly low.  Put a number on it?  Probably less than one percent, possibly much lower.  The easy thing to do would have been to roll the dice and send him home.  I've done it every day I have been in practice, and the odds in this case that I was correct in my gut instinct overwhelmingly supported that path of action.  To admit him to the cardiac ward is hard: I'd have to convince a reluctant patient that he had to stay; I'd get the "really? Come on!" reaction from the internist on call; more paperwork to do, more phone calls to make; and I'd have to live with the sinking feeling in my gut that I was part of the problem of waste and overutilization in American healthcare.  It's hard.

So why did I admit him?  Because I was afraid of being wrong.  Being wrong, especially as an ER doc, has all sorts of negative events assorted with him.  In rough order of frequency, any one or more of the following things might possibly happen when you make a "wrong" choice:
  1. Your partner the next day says, "Hey, remember that guy you sent home yesterday? Yeah, funny thing, he came back with an MI and went to the cath lab.  He's fine."  This sucks, is embarrassing, causes self-doubt and second-guessing, is scary, and affects your future practice.  And note that the patient was "fine" in this outcome!
  2. You run into a cardiologist in the doctor's lounge in a week. He says "Why did you send Mr Jones home? He was obviously having unstable angina, and didn't he tell you his brother had died from an MI? He's OK, but his ejection fraction is 40% and I'm having him fitted for an ICD.  You guys in the ER need to be more careful with these cases."  Maddening. This is the same cardiologist who refused to accept an admit from you last month on a patient with a better story.
  3. You get a phone call from your Medical Director noting that an "Unusual Occurrence" report has been filed regarding your care of Mr Jones and would like a written explanation of your decision-making process for review at the next QA meeting of the department.  Embarrassing and humiliating, but not too scary.  The Medical Director is sympathetic and on your side, but you have to go through the process.
  4. You get a letter from the hospital medical staff office asking you to come to the Med Exec committee regarding a complaint reported by the cardiologist. Very scary, because this goes in your "permanent record," and if you get too many reprimands here, you're unemployable.
  5. You're in the ER three days after you saw the case, and the charge nurse takes you aside: "Remember that weird chest pain dude? He came back in arrest/is in the ICU on a ventilator/needs a transplant/was found dead at home/etc."  You sit down and take a deep breath and commence feeling terrible.  Then you get scared.  Then you start rationalizing.  But mostly you feel guilty because it was your responsibility to take care of that guy and he died because of you.
  6. You get a phone call from Risk Management.  The family has made contact with the hospital and would like to undergo a disclosure, and your participation is considered essential to defusing the situation.
  7. You get a certified letter with an attorney's return address.
So when the WSJ reporter asked me why I made the defensive decision -- wasn't it just the fear of getting sued?  Nope.  It's a fear, and a significant one.  But it's possibly the least likely of all the bad things that happen when you are wrong.  If you've been sued, especially if you thought it was frivolous, or you lost, or if you know someone who's lost big, that fear is magnified beyond its real probability.  But it's just one disincentive among many, and even if you eliminated the possiblity of getting sued (or reduced it greatly, as they have in Texas), there are still so many "punishments" for an "error" that I suspect that the cost of Defensive Medicine will change little.

Kevin Drum has a good summary:

The Real Cost of Medmal | Mother Jones
Trying to isolate and quantify the blame for each particular unnecessary test just isn't possible.

Still, $60 billion is a reasonable enough guess, and trying to reduce that cost is, as Leonhardt says, a no-brainer. Unfortunately, the real problem with our medical malpractice system isn't that it costs too much. The real problem is that it's a lottery. Some people get money they don't deserve because it's cheaper to settle with them even if their claims are frivolous. But far more people who are victims of genuine malpractice never sue and never get a dime. A genuinely fair reform, one that cut frivolous malpractice suits but also did a better job of compensating everyone who was genuinely injured, would almost certainly end up costing us more, not less.
Exactly so. (Emphasis added. I think Kevin used a more expansive definition of "malpractice" than I might.)  The current medical malpractice system is in dire need of reform: it's slow, inefficient and unfair.  The inflated med-mal insurance premiums I pay harm me and my practice as truly as the failure to compensate them harms patients who were injured.  But those who think that it will significantly "bend the curve" and make inroads to controlling health care costs are mistaken.

Fun coda: the example patient cited was real, from the other day.  He truly had no cardiac risk factors and very atypical pain.  I seriously considered sending him home.  He ruled in for an evolving MI.  Score one for defensive medicine.


  1. While the current system is slow, it's not really that inaccurate. But really, your post while informative is not particularly relevant. Why? Two reasons:

    1) current reform proposals are only about caps. Because they're drafted and primarily backed by insurers, with physicians as the face of them. Insurers have no desire to pay people more or faster, regardless of the legitimacy of the claims.

    2) single payer renders this moot as we will likely end up with a workers comp style no fault system. And, with people no longer worrying about medical bills, a major reason to file a malpractice claim is gone. Downside for docs is that the govt is going to punish them anyway for negligent care. And they will likely not find near as sympathetic an ear as they get from a jury.

  2. so here's an honest question. would the physiatrist who refuses to prescribe medication, orders a brainstem mri for a wrist injury and demands repeated tests of renal function count?

  3. Unfortunately, the real problem with our medical malpractice system isn't that it costs too much. The real problem is that it's a lottery. I completely agree with it Medical Affairs

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  5. Well, you could not totally fault those with what you considered “frivolous” claims here. Everyone has the prerogative to do what they deemed as the best option. But then, I guess you’re right that there should be a reform that would prohibit anyone from laying these frivolous lawsuits, and a standard as to what counts as frivolous or not. Now about those genuine victims of malpractice, too bad not all of them were willing to push further to act upon their own justice.

    Sabrina Craig @ The Law Offices of Joseph M. Lichtenstein


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