For decades, physicians have been pushing for comprehensive tort reform for the healthcare sector. Medical malpractice claims in the United States are twice those of other developed countries such as England, Canada, and Germany. Payouts on a U.S. claim can easily reach $3 million or more, whereas in Germany most claims are settled for $30,000 or less.
A 2011 survey conducted by RAND estimated that 99 percent of American physicians in high-risk specialties such as neurosurgery will face a lawsuit at least once in their careers. In Europe, that number is only 20 percent.
U.S. healthcare costs have been skyrocketing and the Affordable Care Act (ACA) has been ineffective at reducing costs. While there are many causes of healthcare cost inflation in the U.S., the ACA only addresses a few.
Recently, an observational study of the relationship between physician spending and risk for malpractice claims was conducted in the U.S.; the results were published in the October 2015 issue of the British Medical Journal.
In the study, hospital data for more than 24,000 physicians were sampled; the researchers found that the higher the resource use, the lower the risk for malpractice claims. In a nutshell, that means doctors who ordered more tests were significantly less likely to be sued for malpractice.
This finding was consistent across 6 of the 7 different specialties evaluated, and was particularly pronounced in obstetrics, the field of medicine that concentrates on pregnancy and childbirth.
Defensive medicine, defined as medical decision-making and care provided solely for the purpose of avoiding malpractice litigation, accounts for a significant proportion of healthcare costs today. While striving to provide excellent care for their patients, physicians are faced with the harsh realities of our litigious society. Many find themselves looking over their shoulders for the next “ambulance chaser” to appear.
In medical school, physicians are taught to think like Sherlock Holmes. When a patient presents with a set of symptoms and physical findings, we develop a differential diagnosis (a list of possible causes) and then we work to eliminate possibilities through logic and objective data. The role of diagnostic testing is to help eliminate or confirm a particular diagnosis, allowing physicians to zero in on a particular cause so that therapy may be initiated.
In many cases, a diagnosis can be confirmed simply by talking to and examining the patient — the medical history and physical exam. Unfortunately, this is becoming a lost art.
When defensive medicine is practiced, this entire system is disturbed because physicians are not being led by logic and objective data. Instead, they are trying to avoid a malpractice claim.
Data such as those recently provided by the British Medical Journal study suggest that the practice of defensive medicine is on the rise, resulting in overutilization of testing, which is a major contributor to the high cost of healthcare in the U.S.
Physicians are taught that the best time to order a test is when we have an intermediate level of suspicion or pretest probability of the presence of a particular disease state or finding.
If the pretest possibility is high, no testing is necessary — we should simply proceed with a therapeutic intervention.
Conversely, if our pretest probability is low then no testing should be performed, and we should move on to testing another diagnosis.
Defensive medicine and over-testing negates our statistical advantage when making a diagnosis. Multiple unneeded tests sometimes produce false positive findings that may result in further testing, and even unnecessary procedures.
These procedures often are associated with complications that could be avoided by more responsible and judicious use of diagnostic tests.
Moreover, patients must deal with the psychological impact of a false positive diagnosis.
We must continue to push for tort reform. Only by removing the motivation for frivolous medical lawsuits will we be able to better contain healthcare costs and limit testing to those that are clinically indicated.
While physicians must be held accountable for their decisions and their actions (as well as their clinical judgment and thought processes), reasonable caps have to be placed on damages.
Attorneys who repeatedly introduce ridiculous and frivolous complaints must be held accountable for the costs and waste that they place on the system. Until then, we will not be able to curtail costs and good physicians will continue to play defense in the clinic.
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