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Lawsuits and Defensive Medicine: The Reality

A Commentary By Froma Harrop

Tuesday, August 13, 2013

Guy limps off the tennis court with an obvious sprained ankle. The doctor tells him to go home, elevate the leg and put some ice where it hurts.

Guy says: "Hey, aren't I going to get an X-ray?"

Doctor: "No, you don't need one."

Guy: "I think I ought to have one. I read somewhere ..."

Next thing you know, the physician is ordering an X-ray. That takes five minutes, whereas arguing with the patient would have consumed 15.

Besides, if there's a one-in-a-zillion chance that some exotic disease is causing the ankle pain, the doctor may be at risk of a medical malpractice suit. So the physician does the defensive thing and orders more tests than deemed medically warranted.

Add up millions of little dramas like the above, and you can see how defensive medicine drives up health care costs. One study puts the tab at over $45 billion a year.

By the way, defensive medicine does not necessarily benefit patients. It subjects them to extra tests and procedures, some of them invasive and not without their own risk. CT scans, for example, expose patients to considerable amounts of radiation.

It's been assumed that fear of lawsuits leading to mega-awards pushes doctors to practice defensive medicine and that tort reform will fix the problem. The story is more complicated than that.

Researchers at the Center for Studying Health System Change, Harvard University and the University of Iowa investigated how worry over malpractice suits affects doctors' decisions. Their findings were published in the journal Health Affairs.

The study linked the level of concern expressed by office-based doctors to their Medicare claims for patients treated. It specifically looked at patients visiting a doctor's office with one of three complaints: chest pain, headache or lower back pain. These symptoms can represent a wide range of health problems, from very minor to very serious. So doctors can justify starting modestly in their treatment or throwing the kitchen sink at them after the first visit.

Not surprisingly, physicians very concerned about malpractice risk were "significantly more likely to order certain diagnostic tests, a pattern consistent with the practice of defensive medicine," the study found.

But interestingly, there was little relationship between the perception of legal risk and the real legal risk, which differs among states. Texas and California, for example, have laws capping damages in malpractice cases, but their doctors were not significantly less worried.

This doesn't mean that tort reform isn't a good thing. It could mean that changes in the laws happened in states where doctors were most afraid of suits.

It also turns out that the potential size of the awards is not necessarily the biggest fear. (Besides, plaintiffs lose four out of five malpractice suits.) Just the emotional hurt and shame of being sued is enough to fill doctors with dread.

"There's a lot of evidence that it's one of the most stressful experiences that physicians report in their lifetime," Emily Carrier, the lead researcher, told me. That includes surgeons who cut into hearts every day. The suits are adversarial, unpleasant and unpredictable.

Other factors, of course, encourage defensive measures. Fee-for-service medicine offers financial incentives to do more of everything. And as the story of the guy with the sprained ankle suggests, many patients demand the works.

The solution, clearly, is to change doctors' perceptions of legal risk. Pilot programs replacing nasty malpractice suits with an administrative system -- something like workers' compensation -- seem the way to go.

That leaves doctors less traumatized, damaged patients can be compensated faster, and physicians don't feel they must drag out the heavy artillery to treat a sprained ankle. Everyone, but the lawyers, wins.

Follow Froma Harrop on Twitter @fromaharrop. To find out more about Froma Harrop, and read features by other Creators writers and cartoonists, visit the Creators webpage atwww.creators.com.

COPYRIGHT 2013 THE PROVIDENCE JOURNAL CO.

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