Tuesday, February 2, 2010

Tort Reform vs. Defensive Medicine:

Dr. Kirsch - Michael - has been kind enough to offer us three articles on tort reform; what follows is the first. Welcome to our new commenter and now, guest author, Dr. Michael Kirsch of MD Whistleblower blog.

In my 20 years of medical practice, no issue provokes more physician angst than the unfair medical malpractice situation we physicians endure. It is the wound that will not heal. Physicians pursue one primary strategy to protect ourselves at the expense of our patients and society; we practice defensive medicine. Defensive medicine is omnipresent and burns up billions of health care dollars that we need so desperately.

Defensive medicine, I strongly believe, is practiced by nearly every physician in the country. If you suspect that this is hyperbole, ask your own doctor, although you may find him defensive about the subject. It’s not actual lawsuits that are suffocating doctors; it’s the fear of of being sued. The aura of litigation hovers in your doctor’s office during your office visits. It's like carbon monoxide. You can't see it or smell it. But, it is real and it is potent.

Attorneys and others reject our defensive posture. They argue that we should simply perform tests and treatments that are medically necessary. Good medicine, they claim, will protect us. Their truth, however, will not set us free. A physician who has a dagger raised above his head cannot ignore this threat when advising patients. ‘Good medicine’ won’t stop a case from being filed against an innocent doctor. A system that can ensnare an innocent physician for months or years is patently defective. We practice defensively as a filter to keep us out of the medical arena in the first place. If we are ultimately released after discovery and depositions, from a case that should never have involved us, we don't agree that our belated dismissal is evidence that the system is working.

Casey Fiano at American Issues Project blames avaricious trial lawyers for forcing physicians to become diagnostic testing machines. I don’t. While I agree that many trial lawyers have lost sight of the noble mission of their profession, they are operating within a corrupt, but legal system. We need new rules. If football games had no rules or referees, then every game would become a melee. Would this be the players’ fault?

Overlawyered points out that many unnecessary hospitalizations result from physicians who want to minimize their legal risk. Do patients want this? Ironically, a hospital, a big building stuffed with germs, should be the last place that any patient wants to spend a weekend. Of course, once in the hospital, defensive medicine goes ‘viral’, as consultants carve you up according to their organ of interest.

WeStandFirm points out that none of the players supports defensive medicine. The ordering physicians don't like it. The radiologists reading these unnecessary scans don't like. Insurance companies don't like it. Patients don't like it. Yet, we physicians practice it every day.

Happy Hospitalist summarizes the situation with simple elegance. Rarely will a patient get only what they need to make the diagnosis. They get far more than is necessary. You can call it good medicine. I call it fear.

I remember our athletic coaches who always emphasized how important defense was. Defense wins ballgames is still a classic sports maxim. This strategy, however, is wrong for doctors. Medicine should not be a contact sport. When defensive medicine triumphs, then patients lose. Does the public want a system that forces physicians to order tests and medical care that it doesn't need? Tort reform, while imperfect, can help heal the wound that harms patients, incinerates a fortune of money and abuses the medical profession. Aren't these 3 defects worthy of reform?


  1. Michael,

    Thank you for your thoughtful and well-reasoned commentary. Some of course I agree with, but want to discuss that in a bit of detail.

    You said, "..‘Good medicine’ won’t stop a case from being filed against an innocent doctor. "

    While that IS true, the truth remains that the percentage of malpractice claims which are frivolous is very small, quite simply because filing such claims on a routine basis will result in sanctions upon the attorney. Judges are rather intollerant of attorney's wasting the court's time. That said, there IS a methodology to filing a low dollar claim which will be paid rather than engage in deposition and legal expense, but THAT means the doctor normally won't be involved in anything like an extensive deposition.

    "A system that can ensnare an innocent physician for months or years is patently defective."

    ABSOLUTELY Agree - and if you have a suggestion on how to resolve, I'd love to hear it. Tort limits, caps, etc.. aren't such a solution, neither is forcing the claimant to pay the legal fees of the defendant. Quite simply, if the latter were used, malpractice carriers would load up the case with legal fees to simply scare off the litigant, especially and including valid claimants.

    "We practice defensively as a filter to keep us out of the medical arena in the first place. "

    Understood, and was the point of my prior post, claiming the $100B of defensive medical costs in the system per year is solely attributable to malpractice defense.

    "If we are ultimately released after discovery and depositions, from a case that should never have involved us, we don't agree that our belated dismissal is evidence that the system is working."

    Agreed again - perhaps we could look at more steep sanctions against the lawyers found to have pushed a specious case, or perhaps a flat filing fee of $1000 per case (or something similar) would be appropriate so as to chase off frivolous cases with low likelihood of success, but not such a barrier to penetration that valid litigants fail to pursue chasing out poor clinicians.

    Regardless of all of that, if the medical doctors of America continue to refuse valid and meaningful oversight such that the poorest of physicians cannot be chased out, there will continue to be little if any sympathy for this issue. Heal that, and your image will be much for favorably viewed, because from the outside, we see malpractice costs driven up by poor physicians repeatedly providing negligent care.

  2. I have never filed a medical malpractice suit on behalf of a client in my career, and I don't intend to, since its not an area of expertise for me. Thus, I can only address legal issues on this in a general way.

    A frivolous claim can result in both the plaintiff making the claim being subject to sanctions, and the attorney can face sanctions as well. The plaintiff can be ordered to pay the defendant's actual reasonable legal expenses, and the attorney can be subject to discipline, up to and including disbarment. More often than not, a first offender will be forced to pay the legal expenses of the other side, and a published censure or suspension will be imposed. The courts can also restrict the attorney's privilege to file that type of action.

    Limiting awards in torts cases cuts both ways, in that an inflexible system harms those who truly need compensation for wrongful acts of medical professionals. (Let's not limit this just to physicians) I am not talking about adverse outcomes. Those happen and often will happen even when the medical provider practices exemplary medicine. I'm speaking of examples of negligence where a medical provider's poor judgment or negligence has caused direct physical harm to the patient. True negligence, when found to be the case, should not only result in compensation for economic damages (medical bills and treatments to make the patient whole if possible), but some compensation for the patient's time and unnecessary pain and suffering. I agree that a cap on those awards is appropriate. I think that punitive awards (when awarded) should not be paid to the patient but to a state fund which could be used to assist those who can't otherwise afford medical care. If a jury (or judge) determines that a medical provider has engaged in negligent conduct, then that provider's name and the information from the case should be referred to the disciplinary body of that profession, so that investigation can occur as to what has happened and whether action should be taken against their license. This is not routinely done today. The vast majority of physicians and medical providers in the US are competent, capable and excellent physicians. However, as in any profession, the few that are not spoil the pot.

    Often, perception becomes a reality when dealing with the general public. When the public has a perception that physicians are coddled and can do no wrong in the eyes of their regulators, the public is more apt to sue and to see redress through the courts. I think that in addition to *some* reform of the tort system (but not extreme and inflexible caps), reform of the regulatory system for licensing physicians and other medical providers is in order.

  3. To P & TOE: Excellent and reasoned comments. We largely agree. TOE, an attorney, knows how difficult it is to get legal fees paid by the other side. It is only rarely ordered by a judge. The definition of a frivolous case is loose. I know of many cases against physicians that should have never been filed, yet these may not meet a legal definition of 'frivolous'. So there is a gaping loophole that plaintiffs' attorneys can use to argue that their claim is not frivolous, but has merit. I do not believe that caps on non-economic damages are ideal, and I do not support the 'loser pays' concept. If the current structure of the medical liability is to be preserved -which may not be ideal for the public - then an effective barrier would need to be set up to screen out physicians that should not be defendants. In many cases, exculpating physicians does not require formal discovery, etc., although lawyers often state otherwise. We need to put an end to the 'fishing expeditions' that can now legally go forth. I am the victim of one right now. A judge has granted the plaintiff a 2nd 45 day extension to find a lawyer to sign an affidavit that I breached the community standard. Shouldn't this affidavit of merit, already a low bar to cross, be required prior to filing suit? I would advise a panel of some sort to screen potential cases. If they deem a case to be unworthy, then such a determination should be admissible and carry weight. There are other ideas that could be considered as well. Finally, I do agree that the medical profession has been lax in its responsbility to provide oversight and accountablility of its practitioners. Great dialogue and a great blog!

  4. I find it interesting that "malpractice insurance" wasn't mentioned. I work in at a very low level for a very large company and they made it clear to us that if the company is ever sued due to something we have done not only are we completely protected, but we will most likely never hear about (although we are still subject to termination if we broke law or policy).

    I would think that doctors are similarly protected, except that there is much more risk (in both number of claims and dollars involved).

    But a lot of the reform on the table is due to the insurance industries, which are responsible not only for health insurance (for the possible plaintiff) but I imagine for malpractice as well.

    How much are the malpractice insurers responsible for rising health care costs, and would holding them responsible as we would health care insurers (with new legislation) have the same effect proposed with tort reform?

  5. To the apathetic commenter, I don't think that malpractice insurance directly increases health care costs. Physicians who fear being sued order unnecessary medical tests to insulate them against a lawsuit. This, of course, raises costs. Whether defensive medicine really protects doctors is arguable, but every doctor does it.

  6. I thought that the whole point of malpractice insurance is to keep doctors from practicing defensive medicine. If they're insured against lawsuits, why are they so worried about them? If they are still worried about them, why do we have malpractice insurance?

  7. One thing that I have not seen a lot of in the discussion about health care costs is the cost of advancements. When I was 10 I had hernia surgery, I spent 3 days in the hospital, was under general anethesia, and was laid up in bed for another 4 days when I got home. Now that same operation is day surgery, but it costs as much or more. My dad died of lung cancer in 1971. At the time the % of people with lung cancer who live 5 yrs or more was about 10% now it is over 50% and they don't usually remove a lung, but you spend a lot more money. So how much of the increased cost of healthcare is due to the increased quality?

  8. While it is not in my field, I do not think that survival rates for lung cancer have changed appreciably. We are diagnosing these cases at earler stages, but I'm not sure these folks are living longer.

  9. The survival rates on Lung CA have improved mostly due to earlier diagnosis, as, the issue with lung cancer is that it metastisizes quickly, and often to the brain.

    My mother recently was diagnosed with lung cancer, but because it was so early, it was easily treated, and it is expected there will be no complications or recidivism.