Defensive Medicine #2

Why do doctors to practice “defensive medicine”?

There are many facets to this question. Today is limited to lawsuits.

This is NOT intended to say that doctors don’t commit malpractice. Medical malpractice does occur. The intent of this argument is only to show some of the reasons why physicians practice “defensive medicine.”

Why are doctors afraid of lawsuits? There’s more to that answer than meets the eye. Payouts can be potentially huge, sure. According to the National Practitioner Databank, (see the 2005 annual report here) the average medical malpractice payout against a physician is $295,000 (see pp. 7-8). Most physicians carry insurance for between $500,000 and $1 million per claim. So why are we worried about malpractice payouts if we have adequate insurance? Look at “jackpot” judgments. Those that will bankrupt you. According to the Physicians Insurer’s Association of America closed claims data from 1985 to 2002, the highest payouts range from $1.3 million for pathology to $9.8 million for internal medicine. With $500,000 to $1 million coverage, physicians could easily end up owing millions of dollars out of their pocket in one of these jackpot jury awards.
Imagine working all your life to become educated so that you can help people, working 80 hours a week during your training, working evenings, weekends and holidays away from your family, taking decades to pay off your student loans, finally putting some money in the bank, and then losing your entire life savings because a crack-addicted pregnant patient you’ve never seen before decides that at 30 weeks she’s going to have her first prenatal visit and delivers a brain-damaged baby into your lap. Then John Edwards and company make impassioned pleas to a jury that the baby inside the womb was crying “I love you mommy, I just want to live to see your face. Why did this doctor do this to me, mommy?”
You work all your life to make a dream for you and your family and the rug gets yanked out from under you because someone else doesn’t do what they’re supposed to do and blames you for a bad outcome. There’s reason #1.

The high payouts are only part of the problem. The National Practitioner Databank is another part of the system that encourages perverse actions. If a payment is made on behalf of a physician on a malpractice case, the physician’s name is reported to the NPDB. Who cares? Well hospitals and insurance companies are required to query the NPDB when determining whether to credential or insure a physician. If the doctor’s name shows up more than once or twice on this list, the doctor may not be able to get hospital privileges or insurance coverage. I know one physician who was refused hospital privileges because of two hits on the NPDB. Try practicing medicine without hospital privileges or insurance coverage.
So physicians have an incentive to do whatever they can to stay out of the NPDB. If ordering another test lessens the chance of starting down the road to a malpractice trial, many physicians are going to order the test. In addition, when a physician is sued for malpractice, even if there is a likelihood that the physician did something wrong, the physician has the incentive to defend the case rather than to settle the case in order to avoid a NPDB report.

Here’s the most important reason physicians practice defensive medicine to avoid lawsuits: medical malpractice judgments are arbitrary. Physicians have been sued for giving a treatment and for failing to give the exact same treatment. For example, the end of this article cites legal cases in which some physicians were sued for giving tPA in strokes and others were sued for failing to give tPA in strokes. The previous article cites physicians who have been sued for failing to obtain informed consent, while this article describes a physician who was sued for obtaining informed consent.

There is no set of rules that physicians can follow stating “this is the right thing to do.” Maine created a law involving practice guidelines that were presumptive evidence of proper care back in 1994 as a pilot program, but later the law was repealed. Strictly adhering to clinical practice guidelines has its pros and cons.

The rules as they stand right now are “if you have a bad outcome, no matter how you act, you can potentially be sued for it.”

So how do physicians practice to avoid lawsuits? They do what they can to avoid the bad outcome. If there is a 0.001% chance of a bad outcome in which you could be sued and lose your life savings and you could avoid that bad outcome by ordering a $10,000 test, what choice do you make? Especially when someone else is responsible for paying for the test, many physicians order the test. After a while, so many physicians get accustomed to just ordering the test that ordering the test becomes the “standard of care.” Once that occurs, if a physician doesn’t order the test and there is a bad outcome, experts testify that the physician was negligent.