An excerpt from Technology and the Doctor-Patient Relationship.
As disturbing as the structure of malpractice insurance is in America, a more significant problem is the defensive style of medical practice it induces. In a large-scale survey done by Jackson Healthcare in 2010, between 73-92% of physicians self-reported ordering unnecessary tests and procedures to protect themselves from lawsuits but which may not have been clinically necessary. This equated to upwards of 850 billion dollars or up to 34% of our annual health care costs in the United States. Simply put, 1 out of every 4 dollars spent in 2009’s or 2.5 trillion dollar health care cost was defensive. The practice of ordering tests to “rule out” something that they thought was unlikely was widely acknowledged as a way to quell the fear that they might miss something and be sued. Some might argue that it was profitable for physicians to order or perform these tests, but only 6% of the physician’s income was found to come from the tests they ordered. Compared to private-sector physicians, those working for the federal government practiced significantly less defensive medicine, as they felt protected by the Federal Tort Claims Act. “Under the Act, health centers are considered Federal employees and are immune from lawsuits, with the Federal government acting as their primary insurer.” Further evidence for how risk aversion induces defensive practices can be found by noting that physicians practicing in New Zealand, Canada, Sweden, and the United Kingdom, are not subject to personal liability suits. According to the Jackson study, these physicians said they never ordered tests just to prevent a lawsuit.
If you’re a physician, take a moment and consider a world in which you didn’t feel compelled to order an ankle X-ray for a sprain, a CT scan for a minor headache, or rib films to prove there’s a fracture when the lungs are clear, and the therapy won’t change. Imagine a system that didn’t make you feel like you should order labs annually in a healthy person just because you might find something. Wouldn’t it be nice not to feel like some lawyer is whispering sweet nothings into your ear as you evaluate an overweight smoker with diabetes, hypertension, and sleep apnea who wants a testosterone level? What about the smoker who has no symptoms but wants a chest X-ray to make sure they haven’t developed cancer – yet? What about the middle-aged patient who wants a lumbar X-ray for four days of back pain with no radicular symptoms?
39% of the physicians in the previously sited 2017 Medscape survey said that the fear of a lawsuit made them order tests that they might not need. Why? Don’t we have systems in place, organizations like the American Medical Association who claim to lobby for physician rights? Yep, but only 7% of those surveyed felt that these groups were doing enough to reduce frivolous malpractice lawsuits. If they didn’t see it coming then how else can we protect ourselves but by practicing defensively?
There is another way to fight back.
Doctors have sued and won cases against lawyers who filed unjustified lawsuits. In an informative article published in the Aesthetic Surgery Journal, a doctor must prove that:
- The underlying malpractice lawsuit was filed not only without justification but maliciously.
- The doctor won the case.
The author goes on to explain that, “Justification—in legal terms, probable cause—is based entirely on what the lawyer knew when the lawsuit was filed, not on what was later discovered. Malice is inferred from the absence of probable cause, and whether the doctor won—in legal terms, a favorable termination—depends wholly on the outcome of the case.” What this means to me, keeping in mind that I’m not dispensing legal advice, is that if a lawyer files a claim without probable cause but only because they want to stir the pot and see what floats to the surface, (even if they find something of interest) but then lose the case in court (not settled in arbitration), they may be liable for acting in malice against the physician or group and so guilty of false claims and responsible for the damages, both financially and emotionally, these allegations caused the physician.
One of several examples given in the article describes how the lawyer of a patient who had a heart attack, fell and broke their shoulder, sued the hospital for having caused the break, even though records showed that the patient arrived unconscious with the shoulder already broken. Another case involved a lawyer who lied about having spoken to a doctor knowledgeable about the case before filing the lawsuit.
Maybe if more lawyers found themselves defending their actions, proving that they had a real probable cause, they would think twice about frivolous litigation. More importantly, if physicians knew they could sue the plaintiff’s attorney, they might be more prone to demand their day in court rather than settling cases they felt were unjustified. Could we take this a step further? What if we got rid of settling altogether? If every lawsuit had to be either dropped or tried, there would always be a winner or a loser. Lawyers who brought cases that were good enough to settle but not likely to win would run the risk of being sued if they lost and so would be more selective in picking cases. Physicians who lost lawsuits would have defended themselves on the stand and so might then try to be better doctors if they were shown to be wrong.
In such a world, I suspect there would be fewer malpractice cases, and so physicians would be less prone to order unnecessary tests “just in case.” If we want to see the rising tide of our nation’s health care costs recede, we should start thinking of ways to reduce the need to practice defensive medicine.
David Lozar is a family physician and author of Technology and the Doctor-Patient Relationship.
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