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Defensive medicine practices could signal a new ‘norm’ in the climate of fear
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Introduction
Defensive medicine is a hot topic about which nearly everyone has an opinion, and much like spiritual beliefs, each party feels that its view is entirely correct. The prevailing wisdom is that defensive medicine is a crisis of sorts in our health care system, contributing billions of dollars in costs that could be saved by federal intervention aimed at reassuring physicians, or immunizing them against lawsuits alleging medical negligence.
In such an environment, physicians would be free to practice medicine, exercise professional judgment, and make health care more efficient and less expensive. In reality, defensive medicine is difficult to define and there are many sides to each argument that can be taken in relation to this complex subject. We have invited a number of legal scholars and physicians to opine on this subject in this Orthopedics Today Round Table. As the responses suggest, there are many perspectives on this vexing issue that is of interest to the medical, legal and political fields, as well as the lay public.
Your comments are welcome; please add to the debate by visiting www.OrthoMind.com; a website that is accessible exclusively to orthopedic surgeons, where you and your colleagues can discuss this subject freely.
– B. Sonny Bal, MD, JD, MBA
Moderator
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B. Sonny Bal, MD, JD, MBA
Michael T. Archdeacon, MD, MSE
Jeffrey
Segal, MD, JD, FACS
Lawrence H. Brenner, JD
David H. Sohn, JD, MD 
Theodore J. Choma, MD
David Teuscher, MD
Ramon L. Jimenez, MD
Neil Vidmar, PhD
Robert B Leflar, JD, MPH
Stuart L. Weinstein, MDB. Sonny Bal, MD, JD, MBA: There are several definitions of “defensive medicine;” how do you define defensive medicine?
Ramon L. Jimenez, MD: Defensive medicine is the practice of evaluating and treating a patient with the belief that certain patient is potentially litigious, and who will file a malpractice claim against you if he or she believes you have done anything wrong. This practice may entail ordering unnecessary tests or over treating to protect oneself from any untoward legal action.
Theodore J. Choma, MD: I view defensive medicine as the ordering of tests, consultations or confirmatory studies that would not necessarily be needed in addition to the current clinical impression to guide treatment. I also view defensive medicine as the refusal to offer treatment options to patients that one might deem as prone to litigation. In either circumstance, there is a barrier to full trust and disclosure between physician and patient.
Michael T. Archdeacon, MD, MSE: I would define defensive medicine as the practice of medicine where imaging studies, diagnostic tests or laboratory values are obtained primarily to protect a physician from missing a diagnosis regardless of whether the study is clinically indicated or even useful. I believe there are two situations in which defensive medicine occurs. First, defensive medicine occurs when a physician is not confident in a diagnosis and is concerned with missing a clinically significant diagnosis, such as a neoplasm or infection. The second defensive medicine scenario arises when a physician is concerned about the risk of malpractice; therefore, defensive actions are taken to theoretically reduce the risk of litigation.
David H. Sohn JD, MD: I would define defensive medicine as tests, imaging and documentation performed primarily to limit exposure to malpractice liability.
Stuart L. Weinstein, MD: Defensive medicine is defined as providing medical services that are not expected to benefit the patient but are undertaken to minimize the risk of a subsequent lawsuit. There are two types of defensive medicine – diagnostic defensive medicine has a much greater impact on costs and therapeutic defensive practices impose greater risks to patients
Robert B Leflar, JD, MPH: Defensive medicine falls into two categories: (a) indicated treatments and procedures foregone because of fear that adverse results might offer opportunities for litigation; and (b) unindicated treatments and procedures performed in part because of fear that failure to provide the treatment or procedure might open the door for litigation. This category broadly includes foregoing areas of practice perceived to be litigation-prone.
Neil Vidmar, PhD: I would define defensive medicine as practicing medicine to avoid errors. There are two types as discussed by Studdert and Mello in Texas Law Review in 2002: (a) avoiding errors that can harm the patient– e.g., errors such as not doing additional tests that would detect a condition and (b) doing unnecessary tests out of fear of a lawsuit or to collect additional fees. Studdert and Mello make the point that some defensive medicine clearly helps save lives.
Jeffrey Segal, MD, JD, FACS: Defensive medicine includes practices which are designed primarily to keep the doctor from being sued. Such practices typically, although not always, benefit the doctor by avoiding litigation rather than benefiting the patient.
Lawrence H. Brenner, JD: There is only one definition of defensive medicine – the performance of medically unnecessary procedures (usually diagnostic) for the sole benefit of the provider without any expected benefit to the patient.
David Teuscher, MD: Medical tests and procedures ordered to mitigate risk for physicians’ liability that do not commensurately and significantly contribute to the patient’s diagnosis or outcome given the costs and/or risks to the patient.
Bal: How prevalent do you believe defensive medicine is in the United States today?
Jimenez: It is my belief that the practice of defensive medicine is quite prevalent in the everyday practice of medicine today, especially in states where there is minimal tort reform or protection from malpractice liability. I practice in California where the Medical Injury California Reform Act (MICRA) was enacted in 1975. This placed a cap of $250,000 on pain and suffering awards. I believe its effect was to decrease the number of frivolous or non-meritorious malpractice lawsuits. As a practitioner, I do not look at every patient as a potential lawsuit. I try to engage and empathize with my patients and therefore gain their confidence and trust. There are a few in which I am not successful. In those cases, I am straightforward with them and I inform them why I wish to order a test and what I expect to prove or learn from it. I always ask if their permission to do so.
Choma: I suspect that defensive medicine plays a small part in the practice of almost every physician, and a substantial part in the practice of a few physicians.
Archdeacon: I would guess that defensive medicine occurs more commonly than we think. Many times our decisions are so ingrained into our daily practice, that we really don’t re-evaluate our rationale for making them.
Sohn: I believe defensive medicine is widely prevalent in the United States. Survey results indicate that more than 90% of physicians practice defensive medicine.
Weinstein: Although hard data are difficult to acquire, several studies on physician attitudes indicate that a fear of lawsuits tends to drive providers to adopt behaviors that lead to increased health care costs. One study, for example, showed that 93% of physician respondents reported engaging in some form of defensive medicine Assurance behavior, as reported by 92% of physician respondents, involves ordering tests (particularly imaging tests), performing diagnostic procedures and referring patients for consultation.
Avoidance behavior, as reported by 42% of physician respondents, includes restricting their practice, eliminating high risk procedures and procedures prone to complications, and avoiding patients with complex problems or patients perceived as litigious. A recent study in Massachusetts showed that 83% of physician respondents ordered imaging and laboratory tests or made specialist referrals defensively. Unfortunately, if these assurance behaviors continue over time, they become the standard of care. Patients also become educated through the Internet and media about this new standard and change their expectations of their care.
On the therapeutic side, defensive therapeutic measures, such as Caesarean sections or invasive procedures such as breast lump biopsies, are accompanied by significant risks to patients and increased health care expenditures.
Leflar: Unindicated treatments and procedures performed in part to avoid the possibility of litigation appear to be common, especially since they are backed up by income opportunities. For more information, see the work of Atul Gawande, MD.
Vidmar: I do not have empirical evidence on either, and thus, I am unwilling to estimate.
Segal: I believe it is extensive. A recent study suggested 91% of doctors admit to practicing defensively. One cynic suggested the other 9% are not being candid.
Brenner: I don’t know.
Teuscher: Pervasive universally, but more prevalent in pockets of perceived potential plaintiffs.
Bal: Do you support federal reform that may immunize physicians against medical malpractice lawsuits? Do you truly believe such reform will lead to noticeable cost savings by reducing the incidence of defensive medicine?
Jimenez: I do not believe that tort reform alone will result in minimizing the incidence of defensive medicine. It does offer some sense of protection, but a physician would be a fool to think that tort reform alone offers immunity from malpractice liability. On the other hand, I believe that the practice of good communication skills, thereby gaining the trust and confidence of your patient goes much further in reducing your exposure to malpractice claims. In short, I do support tort reform but I do not believe that it should be sold as an “immunity law.” If so, it may backfire and not produce any savings whatsoever.
Choma: I would support such federal reform. I believe that it would break down the barriers between physicians and patients, and on the whole, foster an environment for improved medical care. It seems to me that in this age of easy and instantaneous mass communication, and in this time of database construction on physicians’ and hospitals’ outcomes, there are many other vehicles that will serve quality control functions for health care other than the threat of lawsuit.
Archdeacon: I am not certain that federal reform, which immunizes physicians, is necessary. There are circumstances which occur where we as physicians need to be held accountable. Additionally, reform might decrease the occurrence of defensive medicine that is attributed to a fear of malpractice, but it is unlikely to reduce defensive practices related to physician indecisiveness over a diagnosis.
Sohn: I support federal reform to limit medical malpractice risk for physicians. We have more than 35 years of public policy research which clearly show that when malpractice risk is limited, at least in the form of caps on noneconomic damages, doctors utilize less medicine. With hard caps on noneconomic damages, physicians utilize 5% to 9% less medicine. With soft caps, physicians utilize between 3% to 4% less.
Weinstein: Unfortunately, the current medical liability system is ineffective; it neither effectively compensates patients injured from medical negligence nor encourages addressing system errors to improve patient safety. Currently, there is a “patchwork quilt” of laws addressing medical liability across 50 states. In addition, state liability laws are continually under attack. For these two reasons, I think we have a compelling case for a federal solution to this problem. With that said, any federal solution should not preempt effective state laws that exist in states like California and Texas.
An effective federal program must ensure that patients harmed by medical negligence are made whole and patient safety in the health care system is improved. All agree that defensive medicine exists and is costly. While the actual costs of defensive medicine are hard to calculate (range from $5 billion to $650 billion a year), they are considerable. I think that there will be definite health care savings if the medical liability question is effectively addressed at the federal level.
Leflar: I do not support such reform – unless as part of a general program to move to a non-fault-based compensation system offering wider opportunities for compensation for injured patients on an “avoidable injury” standard less stigmatizing to physicians than the negligence standard. Cost savings from such a program are questionable.
Vidmar: I do not support such legislation and indeed have testified against caps. Other evidence suggests that insurance premiums are a small part of doctor expenses. A few years ago, one of my students whose mother was an ob-gyn conducted interviews with a sample of ob-gyns in Colorado and in North Carolina. Medical malpractice premiums and lawsuits were low on their list of complaints about their medical practice issues.
Segal: Yes, in a qualified way. I’ll explain in a bit. Whether or not immunity would be the holy grail for cost savings – providing such immunity would clearly test the proposition that defensive medicine and its costs can be curtailed.
Brenner: This question demonstrates the inherent conflict of interest in surveying physicians and surgeons on defensive medicine and then publishing those surveys as if they were health science research. Any perceived linkage between defensive medicine and limiting liability will bias all responses. It is impossible to predict how immunizing physicians and surgeons from professional liability will impact their practice patterns.
Teuscher: Yes, they worked in my state, and like in California, they need to be instituted nationally. In order to realize cost savings, we need to institutionalize safe harbors to ensure the behavior ceases.
Bal: Assuming the legislative environment was conducive, what specific reforms should the federal government implement to address the allegedly high incidence of defensive medicine?
Jimenez: I strongly believe that the federal government should enact specific tort reforms, such as a cap on pain and suffering awards. Such a measure would be effective in restraining the trial lawyers from filing or taking on non-meritorious lawsuits. A testimony to that opinion is the continuous efforts by the trial lawyers lobby to overturn the MICRA law in California. On the other hand, any broader measures that would give physicians the feeling of immunity from malpractice litigation would not be good. Physicians, like other professionals who service the public, must be held accountable for their actions or lack of action. Unfortunately, we cannot rely simply on their innate integrity and responsibility.
Choma: I would suggest serious caps on jury awards for pain and suffering, and overall physician liability caps. I would also seriously consider provisions, such as those in Texas that treat academic medical centers that serve a societal safety net function in a separate and more protected category. These centers are typically relied upon to care for the most complex and sickest patients, and it seems to me that a healthy societal contract with them would account for this and shield them from the costs of frivolous lawsuits.
Archdeacon: In my opinion, reform with an emphasis on controlling or capping damage awards as well as controlling attorney fees are more reasonable measures to control costs. Health care providers’ fees are regulated at every level, so it seems reasonable that attorney fees associated with medical cases should be regulated as well.
Sohn: I would support caps on noneconomic damages as this is a form of tort reform which has consistently proven effective. A recent New England Journal of Medicine paper by Kachalia and Mello looked at various forms of tort reform from pretrial screening panels to certificate of merit requirements, and found the most consistent benefits for caps on noneconomic damages. Although various states enact different types of caps, it is safe to conclude to that caps in general lead to substantial savings in indemnity cost, modest constraint of growth of malpractice premiums, reduction in at least some defensive practices, modest improvement of physician supply and perhaps even improved quality of care.
Weinstein: While most solutions at the federal level have been modeled after California’s MICRA legislation in the 1970s or the 2003 Texas legislation, these “cap on non-economic damages” plans are essentially a “non-starter” for opponents in Congress. Achieving meaningful federal medical liability reform in any form will require a bipartisan solution. The trial bar is very well organized and 90%+ of their members support their political action committee (PAC). While the American Academy of Orthopaedic Surgeons (AAOS) is the leader in PAC support in organized medicine, including the American Medical Association, only 28% of our members recognize the importance of contributing to the PAC. If every member supported our PAC, we would be in a stronger position.
Leflar: Looking at the long term, a more promising solution may be a no-fault compensation system employing an “avoidable harm” standard rather than a negligence standard, as I mentioned earlier. However, it should probably be undertaken first on an experimental basis in one or more states rather than by the federal government.
Vidmar: Again, the issue comes back to Studdert and Mello’s study. What kind of defensive medicine?
Segal: I believe doctors who can demonstrate they followed evidence-based guidelines should be immune from litigation. Those doctors who can document why they consciously deviated from such guidelines for a specific and reasonable reason should receive qualified immunity.
Brenner: None.
Teuscher: Hard cap on non-economic damages, federal rules, and safe harbors for practicing within evidence-based guidelines.
Bal: Much of our awareness of what constitutes defensive medicine is from surveys of physicians asking if they practice defensive medicine out of fear of litigation. Recognizing the inherent bias in such surveys, how would one design a scientifically valid study that addresses whether or not U.S. physicians practice costly defensive medicine? How would you factor in the consideration of different practice environments, i.e., practices exposed to malpractice lawsuits vs. a protected environment where litigation is a non-issue?
Jimenez: It is my opinion that the best and most accurate method or survey one could utilize in determining if a physician would react or treat a patient in a defensive medicine manner is in the following manner. The test would be made up of five clinical scenarios representing patients of different gradations of potentially litigious overtones. The responses of the physicians would be recorded, not so much on the accuracy, but on the quality of the communication skills manifested. It has been shown that there is a direct correlation between effective communication skills and reduction of malpractice claims.
Choma: I suspect that given how insidious the practice of defensive medicine can be, it will be impossible to accurately quantify the scope of this issue. I don’t, however, think that this makes current survey information without value.
Archdeacon: A rigorous scientific study that assesses defensive medicine would be difficult to design and implement. It seems that such a study should focus on a universally agreeable negative outcome that physicians are concerned with both from a patient care standpoint as well as a litigation standpoint. Perhaps, the workup and diagnosis of infection associated with total knee or total hip arthroplasty, or deep vein thrombosis after hip fracture. Prior to engaging in such a study, an adjudication panel should come up with a set of expected clinical and diagnostic tests. This would be followed by a prospective analysis of practice patterns. This type of investigation begins to mirror evidence-based medicine approaches, which are difficult to agree upon even without the concern for litigation.
Sohn: I think the only way to see whether physicians practice defensive medicine is to compare physician behavior before and after significant tort reform. Say physicians in a litigious environment order 10 tests per patient. If the same group is then guaranteed immunity and only order six tests per patient, it is reasonable to conclude that the additional four tests were ordered solely out of defensive posture.
Such a test is obviously difficult to administer, but there are studies which look at physician behavior before and after the 1975 California MICRA laws. One study by Stanford economists Kessler and McClellan found that physicians utilized between 5% to 9% less medicine after laws which placed hard caps on noneconomic damages. I think this is good evidence that physicians do practice defensive medicine and that they practice less defensive medicine under the umbrella of tort reform.
Weinstein: This is a very complex issue. The best solution here is not related to spending time on surveys but to devote resources to developing appropriateness criteria and guidelines when possible. Unfortunately orthopedic surgery, not unlike most surgical disciplines, is not an evidence-based discipline but an expert-based discipline. It is very hard and prohibitively expensive to do randomized clinical trials on the multitude of conditions that we treat. The variables are so great and the numbers often small for the conditions we treat.
We definitely need to do good clinical research but the AAOS and our specialty societies need to be working in concert to develop appropriateness criteria which apply across all practice environments. If we don’t do this, then someone external to the profession will. With these in place, we will not only help the medical liability problem but begin to do our part in lowering health care costs and improving quality.
Leflar: Choose a limited number of expensive diagnostic procedures for which indications for their performance are clearly defined. A multicenter trial would be needed so that practice environments could be compared – low litigation risk, maybe veterans administration, vs. high litigation risk; and profit potential present, vs. no profit potential present. Obtain rates of performing each procedure at each center. Ideally, include a risk adjustment mechanism so that patient mixes could be standardized. Ideally, do an independent chart review of all or a randomized sample of cases, for an additional perspective on whether performance of the procedures was less frequently justified in some practice environments than in others.
Vidmar: In my answer above about the survey of ob-gyns, I coached the student to be neutral and not ask leading questions. In this vein, Mello conducted a survey of ob-gyns in Pennsylvania and found many saying they would leave the state because of high malpractice premiums. But she later found data that contradicted that finding — and being an honest and unbiased researcher, she reported the latter finding admitting error. I would love to conduct a much larger study along the lines of the one conducted by my student.
Segal: We already have studies which look at defensive practices in other countries. Such doctors are not even aware of what the term defensive medicine even means – as they have no such need to practice defensively. Further, doctors in more “protected” environments in the United States, such as federal employees, have been shown to practice less defensively, again because they have less need to practice defensively. I am not sure designing a study to “look for” defensive medicine would be a good use of dollars. Defensive medicine is pervasive.
Brenner: In order to validly study defensive medicine research scientists would need to have physicians and surgeons identify the charts of patients where they claim unnecessary procedures were performed to reduce liability exposure. The researchers would have to verify that the procedures were unnecessary. Finally, the researchers would have to verify the motivation for ordering medically unnecessary tests. There are many motivations for doing so including financial gain and, lack of diagnostic self confidence. It would likely be impossible to demonstrate the validity of any study of defensive medicine because the results would always be dependent on subjective factors.
Teuscher: Fear of lawsuits is not measured objectively if one practices in a litigation rich environment. How you measure that will always be biased, based upon the perceived and/or real incidence of lawsuits and the severity of damage that they cause to the practice and psyche of the participants.
Bal: In your opinion, is the ordering of otherwise unnecessary tests a worthwhile strategy to shield against medical liability or do such tests merely serve to relieve physician anxiety?
Jimenez: It is my opinion that simply ordering a test as a form of defensive medicine is not very effective. Usually the test is not necessary to provide a good diagnosis or treatment. If there is a problem associated with the test, such as an untoward side effect, or a significant copayment or cost that the patient has to pay, the patient will be unhappy.
If the patient senses or feels that the test was unnecessary, a litigious result may occur anyway. The physician needs to gain the confidence and trust of the patient by using good communication skills, such as empathy, engagement, education and enlistment. A good shared decision between physician and patient will result and the potential for a malpractice claim will be less.
Choma: I suspect, that like most practices in medicine, there is a spectrum here. At times, I truly feel that some consultations are more to address treating – physician anxiety rather than that of the patient. Again, that does not completely nullify the value of such consultations. As long as medicine is practiced by humans and not computers, it will be subject to the all of the frailties of those humans.
Archdeacon: In my opinion, unnecessary tests serve more to relieve physician anxiety than actually reduce malpractice risk. The majority of physicians are 95% comfortable with a diagnosis based on patient history and physical exam. With few exceptions, imaging studies and tests serve as confirmatory aides more that diagnostic aides.
Sohn: This is a controversial topic. There are some physicians who believe that ordering extra tests is irrational, and that physicians actually make things worse for themselves by ordering more tests. However, there are also closed claim studies which show that a commonly asserted element of plaintiffs’ complaints is failure to order tests. I think this actually would be a worthy study.
Weinstein: In the current climate of fear, defensive medicine is becoming the norm. The fear of a lawsuit drives physicians to assure themselves that they are not “missing something” and hence, they order a lot of tests, images and studies for they cannot personally afford to miss any diagnosis regardless of how rare. Instead of following a more strategic, almost algorithmic order of progression to diagnosis, physicians because of fear of liability feel the need to “cover the waterfront” to avoid missing anything regardless of how rare.
In addition, a better educated public is also more demanding of wanting expensive studies, imaging studies in particular, for diagnosis of their problem. Avoidance behavior is purely defensive on the physicians’ part; this unfortunately profoundly affects patient access to care. This inadequate specialty physician coverage is one of the main drivers for closing of emergency rooms.
Leflar: It is not a worthwhile strategy and is a significant contributor to the inefficiency of U.S. medical practice.
Vidmar: Probably the latter. Also, I am not confident that the anxiety is that high – except when it is triggered by physicians’ professional associations. The real issue is whether doctors and especially hospitals gain financially from these extra tests. I know of anecdotal evidence that the hospitals gain financially from unnecessary tests.
Segal: It is a strategy that is more likely to be effective in warding off meritless suits than hoping for the best. A more cost effective alternative might be to document the tests you would have done defensively. Then include in the documentation the literature explaining why such tests are not appropriate. Such a strategy might still land you in court.
Brenner: I am not aware of any scientifically valid studies that establish the presence or absence of defensive medicine.
Teuscher: After a reasonable informed conversation with the patient and their family, if their needs and willingness to fund are to test to make sure there is a negative result and establish peace of mind, then ordering a test with informed shared decision making with a reasonable expectation of the result is not defensive medicine.
Bal: Are you aware of any scientifically valid studies have shown the existence of high costs related to defensive medicine? Or is the evidence in support of the ubiquitous incidence of defensive medicine largely anecdotal and based on common sense (in addition to survey data)?
Jimenez: The Wall Street Journal reported in September 2010 that the latest estimate was (from an analysis published in Health Affairs) $45.6 billion annually (in 2008 dollars), accounting for more than 80% of the $55.6 billion total yearly cost of the medical liability system, according to the authors — from Harvard University and the University of Melbourne.
I do not believe that the numbers are anecdotal but I must admit that they are difficult to exactly pinpoint. Some have also estimated that the costs are about 2.4% of the total health care costs. Even though these figures are difficult to document and verify, it is safe to make the assumption that a significant percentage of the health care dollar is spent trying to avoid lawsuits.
Choma: This is such an emotional issue for physicians that anecdote has a very large affect on our perception of the matter.
Archdeacon: I am not aware of any such studies.
Sohn: California realized a reduction of medical costs from 5% to 9% after enacting caps on noneconomic damages. This seems small, but studies extrapolating these savings to the nation as a whole if there were similar federal tort reform (such as H.R. 5, “The Health Act”) place savings at up to $122 billion per year. That is real savings.
Weinstein: The costs of defensive medicine vary considerably and the methodology of determining costs varied. But many credible sources and references do indeed exist. With that said, opponents will always be able to find what they determine to be critical flaws in the methodology. A 2006 study done by PricewaterhouseCoopers estimated costs upwards of $210 billion a year. The respected research firm found, “While the bulk of the premium dollar pays for medical services, those medical services include the cost of medical liability and defensive medicine … Defensive tests and treatment can pose unnecessary medical risks and add unnecessary costs to health care.”
A more recent Gallup survey of American physicians found the fear of lawsuits was the driver behind 21% of all the tests and treatments ordered by doctors, which equates to 26% of all health care dollars spent. That comes to a staggering $650 billion. According to a study of medical liability costs and the practice of medicine in Health Affairs, overuse of imaging services alone, driven by fear of lawsuits, costs as much as $170 billion a year nationally.
Looking at state data, a study by the Massachusetts Medical Society revealed that 83% of the physicians surveyed reported practicing defensive medicine and that an average of 18% to 28% of tests, procedures, referrals and consultations and 13% of hospitalizations were ordered for defensive reasons. Estimates are that assurance behavior costs Massachusetts a staggering $1.4 billion annually.
Leflar: The evidence is largely anecdotal. However, it is widespread enough to be believable.
Vidmar: I suspect there are no studies that are valid.
Segal: Studies by Kessler, McClellan and Baicker suggest that the harsher the medico-legal environment, the more expensive the practice of medicine.
Brenner: It only reduces anxieties. Most diagnostic related malpractice claims (and the court decisions that support liability) result from inaccurate histories and incomplete physicals.
Teuscher: More importantly, are there any scientifically valid studies that show that defensive medicine and our broken medical liability system are not costing us more in medical expenditures and unnecessary medical tests through defensive medical ordering practices.
Bal: To the extent that defensive medicine exists, is it not a beneficial result of our civil liability system that holds individuals accountable for their conduct? In other words, are we not better off because of defensive medicine?
Jimenez: I must respectfully disagree with your conclusion that defensive medicine is in itself good or yields a beneficial result. I believe that the feeling of accountability must be inherent in the person of the physician and not the result of society’s demands. In other words, we as physicians must hold ourselves accountable and do the best we can for each and every patient. If every physician had this mindset and practiced these principles, then there would not be any need for the practice of defensive medicine.
Choma: I’m afraid that I cannot agree with that. From my view, a large contributor to the emotion of the issue is that physicians inherently resent that there exists this barrier between doctor and patient. We know in our hearts that true confidence in this relationship can improve our quality of medicine. This is the confidence that allows us to skip the next test of dubious value when one of our patients is experiencing a suboptimal outcome. This is the confidence that allows us to skip the next diagnostic MRI when we know that it won’t change the next treatment recommendation.
In addition, patients must be brought into the daily conversation with their physicians that we are dealing in uncertainties most of the time. To the extent that the additional diagnostic maneuvers purred by defensive medicine continue to supplant that discussion with our patients, we will continue to be dissatisfied.
Archdeacon: Again, I believe most physicians are comfortable with their diagnosis and treatment plans prior to any tests or studies. A small percentage of cases probably really benefit from further investigations. However, there are obvious exceptions, like presurgical imaging studies that assist in developing the surgical plan. So, in my opinion, a small percentage of patients probably benefit from the practice of defensive medicine, but it is unlikely that the majority receive any tangible benefits.
Sohn: To some degree, there is a need for the tort system in general. Civil litigation acts as a sort of “private attorney general” that discourages negligence and improves public safety. For example, we don’t want companies making shoddy tiger cages, or cars with gas tanks placed in precarious positions. However, medicine is ill-adapted to the tort system for at least three significant reasons.
First, most medical errors are not the result of negligence. They are the result of system errors. According to the groundbreaking 1997 Institute of Medicine report, “To Err is Human,” most errors made are not negligence but unavoidable human error that can only be minimized by investment in systems of checks and verifications to catch such errors. They cannot be avoided by frightening physicians and threatening them with lawsuits.
Second, plaintiffs in medical malpractice sue due to complications, not due to negligence. One closed claim study out of Harvard found that only one in seven lawsuits filed actually contained evidence of negligence. In medicine, however, there is always the risk of complications because medicine and human biology is an inexact science. It would be nice to somehow compensate patients who are injured, but trying to assert negligence for unavoidable complications likely will have either a chilling effect on riskier services, an increase in defensive medicine, or both.
Third, using the tort system to improve the quality of medicine is no longer a luxury we can afford. We have reached a crisis in the costs of medical care, and even if there were some marginal improvement of quality due to the threat of litigation, it is not justified by the increase in defensive medicine costs. We spend $100 billion per year on radiology costs, 30% of which the radiologists estimate is not necessary. We are at a point where politicians have talked of instituting review panels for rationing of medicine, and where every year there is the threat of 10% to 20% cuts in Medicare reimbursements for physicians. The “private attorney general role,” ill-suited to begin with to the medical field, is a luxury we just cannot afford.
Weinstein: Defensive medicine is a reality. It is costly and interferes with access to care. Defensive practices will slowly become the standard of care leading to permanent costly inappropriate poor quality care. Defensive medicine does not improve patient outcomes nor make the health care delivery system safer. But the current climate of fear among physicians will lead to continued costly defensive medicine practices and lack of system transparency necessary to make the system safer.
With medical liability reform a wedge issue between Republicans and Democrats, the federal government will continue to be impotent in developing a federal solution and hence, we will continue to operate under a patchwork quilt of ineffective state programs that are continually under attack by the trial bar. Until reasonable members of both parties are willing to develop a bipartisan solution, the prognosis for ending defensive medicine practices and reforming the current medical liability system is guarded.
Leflar: No, not if one accepts my two-fold definition of defensive medicine.
Vidmar: Again I go back to the Studdert and Mello study – good or bad defensive medicine?
Segal: No. First, some defensive practices harm patients – causing worry, morbidity, sometimes mortality. Next, defensive medicine makes health care more expensive and decreases access to care for many Americans. Even if select patients benefit, patients in the aggregate do not.
Brenner: I believe that the purpose of our professional liability system is to produce fair and just results. The unending, ideological debate on whether our liability system leads to increased costs or improved patient care quality is a partisan debate unrelated to achieving fair verdicts.
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This question demonstrates why the issue of defensive medicine creates an unacceptable choice for organized medicine. If you accept my definition, then performing procedures without any expected benefit to patients is unethical and potentially illegal. On the other hand, if you allow that the definition of defensive medicine includes clinical benefits to patients then you also have to allow that malpractice litigation has increased patient safety and improved patient quality.
Teuscher: Our broken civil liability system does not act swiftly nor justly, let alone predictably as promised. It fails miserably to hold anyone accountable for their misconduct. Why promote spending more money on tests defensively that do not give patients a true benefit? Litigation is not the answer, but merely a symptom of the disease that ails American medicine.
- Michael T. Archdeacon, MD, MSE, can be reached at Department of Orthopaedic Surgery, University Hospital University of Cincinnati Academic Health Center, P.O. Box 670212, Cincinnati, OH 45267-0212; 513-558-2978; email: michael.archdeacon@uc.edu.
- B. Sonny Bal, MD, JD, MBA, can be reached at Missouri Orthopaedic Institute, 1100 Virginia Ave., Columbia, MO 65212; 573-882-6762; email: BalB@health.missouri.edu.
- Lawrence H. Brenner, JD, can be reached at P.O. Box 787, Carrboro, NC 27510; 919-929-5597; email: lb@lawrencebrennerlaw.com
- Theodore J. Choma, MD, can be reached at Department of Orthopaedic Surgery, University of Missouri, 1100 Virginia Ave., DC 000530, Columbia, MO 65212; 573-882-1440; email: chomat@health.missouri.edu.
- Ramon L. Jimenez, MD, can be reached at Monterey Peninsula Orthopaedic and Sports Medicine Institute, 10 Harris Ct. Bldg. A, Suite A, Monterey, CA 93940; 831-643-9788; email: ramon@jimenez.net.
- Robert B Leflar, JD, MPH, can be reached at Arkansas Bar Foundation Professor of Law, University of Arkansas School of Law, 1045 W. Maple St., Fayetteville AR 72701; 479- 575-2709; email: rbleflar@uark.edu.
- Jeffrey Segal, MD, JD, can be reached at Medical Justice, P.O. Box 49669, Greensboro, NC 27419; 336-691-1286; email: jsegal@medicaljustice.com.
- David H. Sohn, JD, MD, can be reached at Department of Orthopaedic Surgery, Division of Sports Medicine, University of Toledo Medical Center, 3000 Arlington Ave., Toledo, OH 43614; 419- 383-3761; email: david.sohn@utoledo.edu.
- David Teuscher, MD, can be reached at Beaumont Bone & Joint Institute, 3650 Laurel Ave., Beaumont, TX 77707; 409-838-0346; email: sportdoctor@gt.rr.com.
- Neil Vidmar, PhD, can be reached at Duke University School of Law, Room 3183, Box 90360, Durham, NC 27708-0360; 919-613-7090; email: vidmar@law.duke.edu.
- Stuart L. Weinstein, MD, can be reached at Department of Orthopaedic Surgery, 01026 JPP University of Iowa Hospitals and Clinics, Iowa City IA 52242; 319-356-1872; fax: 319-353-7919; email: stuart-weinstein@uiowa.edu.
- Disclosures: Archdeacon, Bal, Brenner, Choma, Jimenez, Leflar, Sohn, Teuscher, Vidmar and Weinstein have no relevant financial disclosures; Segal is a shareholder in Medical Justice.