Thursday, August 27, 2009

The Risks of Defensive Medicine and Why It Isn't Going Away Anytime Soon. Even with Tort Reform

I've already had a few blogs about medical malpractice reform (Part 1 and Part 2). And if you've read them, you know I am a big supporter of completely altering how patient complaints against physicians are handled. Not just for the benefit of the doctor, but because the current system is not so great for the patient either.

No longer is a patient a sick person with a sacred relationship with their physcian. They are now "Consumers of healthcare." And fear of retribution by those consumers prevents doctors from making sound judgments on patient care. Doctors are tired of attempting to educate patients on best practice, when not getting their demand will lead to an unhappy consumer. And all doctors know that unhappy consumers like to sue if there is a bad outcome (statistically probable adverse events that are not malpractice).


I read over and over how either defensive medicine does not exist, or that it is actually a good thing (just recently saw a tweet to this effect). These are usually medical malpractice attorneys. They have convinced themselves that they are policing the bad doctors and are helping to produce more careful, compassionate, higher quality physicians.

The only part I agree with is the careful part. Docs take care to make sure every contingency is addressed. While that might sound good, it is not. Here's why:
  • In medical classes like CME, doctors are often taught the right way and the defensible way to treat a given patient. These are often very different. For instance, the right way to treat a simple ear infection, based on the latest pediatric guidelines is NOT to use antibiotics. However, an untreated infection that leads to a rare complication such as Mastoiditis could likely lead to a malpractice suit.
  • Therefore, the defensible way to treat this situation would be to give antibiotics. The implications of taking unnecessary antibiotics seem minuscule to the patient, however, it leads to grave problems in the future on a personal and societal level when those antibiotics become resistant to infections. In a word: CA-MRSA (Community Acquired Methicillin Resistant Staph Aureus) which is what causes those huge painful boils that pop up and lead to sepsis if they are not addressed.
  • If a patient wants an x-ray or a CT they don't need, they get it. Because juries don't penalizing for doing extra, but for not doing enough. However, a brand new study by the NEJM shows that those tests that we do on patients give dangerously high radiation doses. Especially bad as a cumulative effect over time. This can lead to many kinds of cancers; one study estimated 1 in 10,000 pts will get thyroid cancer from a CT scan.
  • The funny thing about tests is that many are equivocal, meaning, they didn't give a definitive answer and the recommendation is to do another test. So tests often lead to more tests. And before you know it, that innocent CT you did "just to be safe" leads to renal failure from the IV dye you received, throwing you into congestive heart failure and leading to even more problems. The book "The House of G-d" espouses less is more for healthier patients for this very reason.

While I definitely think we need tort reform for the many reasons I detailed in my last two blogs, I think it is unrealistic to assume that physician behavior will change overnight. If comprehensive tort reform that screened out frivolous cases before they even became a lawsuit were enacted tomorrow, it would be at least five years before any change in defensive medicine practices were noticed. And much of that would be because of newly graduating physicians practicing in a less litiginous environment.

Look at the poor adoption of IT by physicians. A much less controversial topic. And look at how hard it is to change the behavior of physicians who use paper and like it that way. Changing something like defensive medicine will be doubly or triply (word?) challenging.

In the course of my psychology studies, I learned about Maslow's hierarchy of needs, which explains really well the motivations of physicians and why they regress from idealistic doctors to self-doubting defensive medicine practices.

In this theory, human beings are motivated by unsatisfied needs, with the lower, more basic needs having to be satsified before the higher, more selfless needs can be actualized. The first four needs are the deficiency needs: psychological (e.g. breathing, food, water), safety (security of body, resources, employment), social (working as a team, sense of community), and esteem (confidence, respect by others). Under stressful conditions, people can regress to lower levels, and Maslow postulated that if you have significant problems somewhere along the hierarchy, you may fixate on these needs for the rest of your life.

This model explains physician behavior very well. Physicians who are sued will likely suffer a breakdown in the second stage of the need for safety and security. They will enact asset protection plans, increase their insurance limits, and suffer extreme anxiety at the thought of losing everything. They may obsess about maximizing reimbursement. At this point, the physician's priorities change to the lower needs. And as long as they continue to regress away from self-actualization, they will look at life differently than before. They will practice medicine differently than before. They will abandon their intuition and their compassion. Their altruistic practice of medicine will cease to be a motivating factor until the physician is able to reconcile these fears.

Those that manage their safety need can still be stuck in one of the next levels of motivation. It is here where the practice of defensive medicine begins to be ingrained; from either a lack of trust of their colleagues, team, or patient (social need), or from a lack of trust in their own abilities (esteem need). Regardless, once fixated on these deficiencies, it is hard to break free to advance to a point where your sole interest is in taking care of the patient.

And if you are one of the rare doctors who can overcome all of this to be a completely selfless compassionate physician, you can become extremely frustrated when forces outside of your control (e.g. administrators or HMOs) demand that you practice in a manner that conflicts with your high ideals. These excellent physicians typically retire early, or limit their practice, while those in the lower needs continue to practice in their regressive fashion.

The current system selects for those physicians who can adapt to the system, not for the physicians who can overcome it. It's all darwin. Survival of the fittest. Darwin didn't have a place for compassion.

My solution? We should have tort reform. But we have to be realistic. It will take at least five years (probably ten) after med mal reform before a significant dent in the 100-200 billion dollar a year of costs that occur from defensive medicine.


  1. Nice posts. Meaningful tort reform is not only off the radar, it's somewhere in another galaxy. The only constituency who wants it is us, and we don't have the influence to push back against the forces who need the status quo to preserve their own interests. The AMA, hardly an advocacy group for physicians, has rolled over on this issue. I invite interested readers to comment on my postings at under the Legal Quality category. The current tort system probably directly and indirectly consumes enough money to cover all of the uninsured.

  2. Interesting post, and interesting blog. It's great to see so many doctors out there blogging now, especially in this critical point in our nation's health care history.

    I especially liked the reference to Maslow's model. It's interesting how we as doctors, having spent most of our lives working based on that fourth stage, can abandon our altruistic attributes when a break in our structure occurs. And it doesn't have to be in the form of legal action taken by one of our patients. It can be a simple mistake that caused some temporary setback in the patient's care that causes such distress that it changes everything about the way one practices. Very interesting theory...

    Thanks. And check out my blog at for other medical current events.

    Keep up the nice blogging!

  3. Do not underestimate the esteem factor (confidence, respect from colleagues), which you list 4th among the first four needs.

    Having spent my life working in a University setting where every patient is reviewed and presented to your colleagues (and no stones are left unturned) it is hard to imagine a less expensive practice of medicine. NB: these centers are where most med. students are trained and they get the message very quickly as they are taught about the latest technologies available and the latest (and often most expensive) therapeutics.

    Personally, I have never been sued, nor have any of my colleagues, nor are any of us (I think) really afraid of being sued. Yet we all practice 'defensive medicine' and I do not think tort reform will change this.

  4. Thanks for a very insightful post. I hadn't thought of this in terms of Maslow's Hierarchy, but it really rings true. It would explain some of the paranoid ravings in that throwaway journal Medical Economics.

    The overuse of antibiotics is a huge problem, especially treating minor infections with antibiotics that are far broader spectrum than needed. Now we've got so many gram negative organisms that have become resistant to Levaquin, it's no better than Bactrim. Plus people are rupturing tendons all over the place. Well, duh!

    But what really gets me is the expectation that we are responsible for our patient's bad choices, and that if we don't tell a non-compliant patient to go find another doctor, we're liable for the consequences. Other than the obvious advantages to us of not having to deal with those patients -- it gets pretty old signing five different mammogram requests for a patient who keeps losing them or allowing them to expire -- how does being shuttled from doctor to doctor improve the odds the patient will have better outcomes?

  5. Some do recognize the waste and the corrosive nature of defensive medicine.

    Dr Tom Price, a member of Congress, has introduced the concept of Safe Harbor - whereby physicians who adhere to clinical best practices (as determined by physicians and specialists) would be protected from the frivolous lawsuits.

    Here is some background (via

    Rep. Tom Price (R-Ga.), a licensed physician and orthopedic surgeon, has proposed the Health Care OverUse Reform Today Act (HealthCOURT Act), a comprehensive medical liability reform bill intended to reform the process for pursuing medical malpractice cases while decreasing the drive for providers to practice defensive medicine.

    One provision of Rep. Price’s bill that will bring about real change is the creation of a litigation “safe harbor” for physicians who agree to embrace clinical best practices as the standard by which they are held accountable. Clinical best practices can be defined as the most effective evidence-based medical care that results in optimum outcomes. Clinical best practices must be recognized as superior care by physicians in a particular medical specialty that promotes continuous improvement and is widely disseminated to healthcare professionals.

    Therefore, physicians who fully incorporate clinical best practices into the care and treatment of patients are using nationally recognized standards of superior medical care. This “safe harbor” law would exempt from medical malpractice claims physicians that follow and document best-in-class standards in treating their patients.

    . . . a judge, when deciding whether to allow a lawsuit to go forward, would be able to review a patient’s medical record documenting the treatment the patient received and take into account whether that treatment complied with nationally recognized best practices. If so, the judge would be justified in dismissing the case. This reform would stop personal injury lawyers from filing predatory, frivolous malpractice claims.

    These best-practice standards will need to be established and clearly delineated so that a judge can review and understand them. Fortunately, most national medical specialty groups have some form of best practices. We believe that physicians — working through their national medical specialty societies — should establish best-practice standards for other physicians. Not federal bureaucrats. Not Medicare or Medicaid bean counters.

    Of course, there will always be instances when a physician and patient collaboratively decide to deviate from national best practices. For example, the best-practice treatment of a particular cancer may include radiation, chemotherapy and surgery, but the patient elects not to include chemotherapy treatments. So long as this decision is documented in a medical record, the rules of safe harbor should still apply.

    By appropriately creating a safe harbor for physicians who incorporate clinical best practices into the care and treatment of their patients, we would effectively eliminate the need for expensive defensive medical costs. Physicians would instead be able to focus on how to make sick people healthy rather than ordering unnecessary tests, scans and medical procedures undertaken solely for the purpose of avoiding a malpractice claim. The use of clinical best practices will result in fewer cases going to court, less money being wasted, quicker resolution of legitimate malpractice claims, lower medical malpractice insurance rates and better health and healthcare services for patients.

    Just as an aside, the US has the most expensive legal system in the world - about double any other country -- do you hear much about how we need legal reform to bring costs in line with other countries?

  6. Evinx, good points. problem w/ tom price (someone many of my atl friends vociferously supported) is he is toting the party line on health care reform and is doing the "talk to the hand" approach on negotiation. Who will take him seriously on the dem side when there is no willingness to compromise on issues that the majority of MDs support (e.g. need for health care reform)?

    That being said, the best practices method has good points and bad points. You mention the good ones. The bad ones: often times there are legitimate reasons for going against best practices, e.g. not giving a Beta blocker after MI due to severe asthma. As someone who has been part of a system that penalizes MDs financially for deviations from "best practices" that have no room for nuance and are loosely based on scientific evidence, these programs lead to more disgruntled physicians as it is nearly impossible to succeed.

    So best practices could be good, but needs to have the art of medicine "nuance" allowed for in order for it to succeed.

  7. @Dr Brenner
    You are right that best practices are far from perfect. However, the concept of Safe Harbor thru best practices would eliminate lots of frivolous lawsuits. I suspect we might agree that many lawsuits are simply brought to, in effect, extort a settlement from insurance companies. I would think many of these will simply be eliminated.

    And yes, drs do and often must deviate from best practices. Documentation would help in such cases. Sure it might be litigated and juries, relying on experts, might have to weigh the pluses and minuses. But, we are talking about tort reform. Our legal system is at times imperfect; but, in the world we live in, we need to unclog the system from all the junk lawsuits with junk science (a la John Edwards). The Safe Harbor concept is a step in the right direction.

    I personally do not like capping damages; a serious victim of flagrant malpractice should be subject to both compensatory and punitive damages. Furthermore, the political world we live in would never go for capping of damages. The Safe Harbor concept, properly developed, would be a huge step in the right direction.

    But you are right in that nobody takes Rep Price bill seriously. Politics is a blood sport - and we need legislators who will work on solutions instead of perfecting the art of political gamesmanship.

  8. "I suspect we might agree that many lawsuits are simply brought to, in effect, extort a settlement from insurance companies. I would think many of these will simply be eliminated."

    I think this reflects a naivete on the part of physicians, who since they deal with insurers every day, ought to know better. Simply put, insurers aren't in the habit of settling truly frivolous (meaning no merit) med mal cases. And why would they? They have an excellent trial record in med mal, and the lawyers who try med mal cases for the defense are typically top notch because of the dollars involved.

    If a lawyer was going to try to make money filing bs personal injury cases, the WORST place to do it would be in med mal, where the entry cost to filing a case is so high. You'd be better off to do it on auto accidents or slip and falls.

    You guys can talk "best practices" and that's all well and good, but at the end of the day, tort reform = caps. Why? Because the people behind tort reform, corporate America, particularly the insurers, want them. It has little to do with any sort of justice, because a cap doesn't care about the merit of the claim. That's why any tort reform proposal with any traction has caps in it. Because the true sponsors want it. Doctors just end up being the face of the proposal.

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