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).

WHY IS DEFENSIVE MEDICINE BAD?

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.

WHY CURRENT PROPOSALS FOR TORT REFORM WON'T CHANGE MUCH ABOUT THE PRACTICE OF DEFENSIVE MEDICINE:

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.

My own private Press-Ganey Hell

I have already had two posts(1) about the Press-Ganey(2). But that isn't enough. Any physician reading this likely has the same visceral hatred that bubbles up whenever these two (one w/hyphen?) words are brought up.

Again, for those who are not familiar with the term, Press-Ganey, it is a survey that administrators of hospitals use as gospel for who is the best hospital and is all about customer satisfaction.

But there are flaws in this Press-Ganey. What are the flaws? Oh, too many to list here (let me count the ways...). I'll just hit the highlights:

1. First is that Press-Ganey has a complete monopoly. They are accountable to no one, despite their less-than-scientific method of procuring data. If I practiced medicine in the same "Evidenced Based" manner that the Press-Ganey does, I'd lose my license.
2. While the (from now on abbreviation PG will be used) PG is supposed to take a random sample of patients a physician sees, it is biased in the sense that the surveys are voluntary and only motivated and healthy-enough to fill out a survey in the first place.
3. Plus, take the ER for example. My "random" sample is based on patients who are discharged from the hospital only. No admitted patients fill these out. As an "Emergency" physician, the admitted patients represent the true emergencies. I'm not saying all discharged patients aren't supposed to be there, but I'd call them easily addressed "Urgencies."
4. Worse, the odds are that the more often a patient shows up to the ER, the more likely they are to eventually get a survey. Do I need to spell out what kinds of patients show up to the ER frequently?
5. I am graded by the patients that I had to spend the least amount of time with since I focus my attention on the true Emergencies first and foremost.
6. And while the PG should have the same standards for every hospital - since they compare every hospital and form a grade for each hospital/provider, they don't. Each hospital interprets the selection of patients differently - I know bc in my career I've already worked at five different hospitals. One hospital excluded patients with "drug seeking behavior," whereas my current hospital does not.
7. The grades are on a curve. In other words, hypothetically, if you think that on a five point scale 5 is excellent and 3 is average, and all doctors surveyed had an average of four, that would mean all docs are above average. But all docs don't get a PG score of above average. They can't since it is done on a curve. You could give above average care and get a score in the bottom 25% (an "F" if you were in school). WHAT??? Yes. That is true. And that is exactly what happens. Good doctors are getting penalized even when the satifaction scores are above average.

So why am I venting, again, about the PG? Here is my recent foray into PG madness:

I started a new job in January, and from the get-go had great PG scores. Of course, the sampling was low, so nothing was statistically significant. Once I got one unhappy patient, it killed my score. So 4 excellent scores and 1 bad one = Very bad PG score. But despite that, my scores were still in the top 80%. And stayed that way until June.

All of a sudden, in June my scores dropped to 1%. I naturally assumed I must have gotten a bunch of really bad reviews. Bad luck? Bad day for me? I didn't know. We have a binder that has the recent PG reviews for the department, and looking in there, all the reviews were 5's. The highest. I didn't get it.

The inevitable happened. My administrator saw my scores and insisted I be rehabilitated. My medical director had a "talk" with me. But to his credit, he promised to pull these surveys so that I could find out what was said so I might know what to improve. And he assigned someone to the four hour, painstaking task, of searching for all of the surveys and matching it up with the charts. And you know what they found (drumroll.......)?

These charts didn't belong to me! They were the PA's patient, or another physician (obvious when the pt is criticizing the tall male MD when I am a petite female doc). In fact my scores were almost exclusively 5's. Putting me at the top of the scale, not the bottom. Yet I still get that scarlet letter score pasted up all over the ED that makes me look like a mean uncaring doctor.

My director apologized to me, but it is not his fault. It is the fault of the administrators who are so desperate to have some standard with which to grade themselves, they choose not to use scientific rigor to evaluate that very imperfect standard that they use. And we doctors are the ones who suffer.

The Medical Malpractice Reform Debate Part 2

In my previous blog I discussed why our current tort system for medical malpractice is unfair to both patient and physician. And I said I had a plan for reform. Here it is:

In order to solve the problem, you have to establish what you were trying to accomplish in the first place. The reason medical malpractice exists in such prevalence today is because physicians have resisted an organized format for policing themselves. Most patients (and their attorneys) would say that they are just trying to sift out the bad doctors.

So the question we should ask is "What kind of system would truly allow errors and malpractice to be identified, fixed, with truly egregious acts punished, and allow recompense to the harmed patients?"

Some say that physicians should have immunity, like judges, prosecutors and legislators. The reason for the federal employee immunity is that is serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. The same could be said for physicians, making life altering decisions-judgments so to speak. However, complete immunity would shield those committing true malpractice, so I don't believe this is the answer.

I understand why patients hearing of medical successes every day would think that a bad outcome would be malpractice. However, suing your physician does little to correct the problem as most errors are systemic, reversible problems.

The Solution:

1. Each Medical Specialty Board sets the standards for what kind of education a physician should obtain to be qualified to practice. Therefore, they, not layperson juries, are the only ones truly qualified to determine medical malpractice.
2. When a patient has a complaint against a physician, before going through the state court system, the complaint is first heard by a panel of physicians of that doctor's specialty.
3. Every Specialty Board will require service by its members on that panel that meets every month-each physician must participate once every two years. It will be local, as there are sufficient members of each specialty in every state (however, if some states have shortages of Neurosurgeons for instance, there could be a multi-state meeting).
4. The panel will be blinded in reviewing complaints and won't know who the physician is whom they are evaluating. The panel will have an odd number of members and decision will be majority vote.
5. The decision will be: a) Was this malpractice, bad outcome, or a systemic problem? b) If bad outcome or systemic: a separate committee will compile this data and compare it to Evidence Based Medicine and seek answers to correct future occurrences - then disseminate that information to the physicians in that specialty.
6. If Malpractice is determined, there will be a standard penalty for offenders: e.g. first time malpractice gets automatic required CME targeted to the issues in the case and probation, second time offenders in the probationary period will get more CME, and random case review. Third time and thereafter offenders risk license suspension and even re-education in an apprenticeship/residency type situation.
7. Also, if Malpractice is determined, the case gets put into arbitration for settlement. While the physician (or plaintiff) could still decide to press for trial, the decision of the panel will be fully admissible in all states and will be highly influential to any jury.
8. The process will be swift, with all patient complaints getting heard by the panel within 6 months and possible settlement within a year. Since there is no costly trial, most of the award to the patient remains with the patient, and they get it quicker. Overall insurance costs go down, and therefore so do physician premiums.
9. Bad doctors will be rooted out. Good doctors will no longer suffer from the actions of the <5%>

However, the losers in the plan are the attorneys, and the livelihood of medical malpractice attorneys like my father will be threatened as a result. They will not go down quietly.

How Medical Malpractice Reform Does or Does not Fit Into the Healthcare Reform Debate

First the disclaimer: I feel uniquely qualified in writing this as I am not only a Physician, but the daughter of a medical malpractice attorney. Helping my father on his cases while I was in high school, is, to a large extent, why I chose medicine as a profession. I was fascinated by his cases, and in particular, the medicine aspects. Also, I have written a book, "How to survive a medical malpractice lawsuit" that will be published by Wiley-Blackwell in the late fall (shameless plug).

I grew up thinking that medical malpractice litigation was a necessary evil. Since my dad was a defense attorney, I naturally thought that he was the hero, rescuing good physicians from bad situations that often had little to do with their ability as a physician. I blamed the plaintiff's attorneys for propagating cases-not for the benefit of their clients-but for their own pocketbook. Plaintiff's attorneys often made 5 to 10x what a defense attorney made in salary due to the huge payoff.

As I applied to medical school, I was careful not to mention, if possible, what my father did for a living. Once, I was asked directly what my father did, and even mentioning that he was a lawyer was enough to engender disgust. It didn't seem to help that he was a defense attorney. I didn't understand, at the time, why a physician would have such disdain for a defense attorney; he was their defender after all. I still suspect this information coming out in the interview is the true reason for my rejection letter from that particular medical school, but I'll never be able to prove it...

Now as a practicing physician, I understand that guttural reaction towards malpractice attorneys of either side. I have learned that no matter which side you're on, you depend on doctors being sued to put food on the table. This of course led to some lively conversation between my father and myself.

So here are the issues as I see it:

• The healthcare arena is a scary place. And patients definitely need an outlet for their frustrations with the broken healthcare system we have now. Complaints often fall on deaf ears.
• Patients feel that the system is working against them (perhaps it is) and nobody is listening...that is...until they file a lawsuit. A lawsuit gets everyone's attention, and threatening one is the surest way to get your complaint heard and addressed.
• Currently, there are two ways to complain about your physician. A) You can issue one to the state medical board or B) You can get a lawyer to file a lawsuit. Reporting a physician to the medical board risks a physician license and therefore is investigated thoroughly and taken very seriously.
• The down side to this system is that there is no due process for the physician. No court. No juries. However, that is also the upside. At least your fate is in the hands of others who practice(d) medicine. And if the physician actually committed true malpractice, this is the system the is likely to punish them appropriately.
• Filing a lawsuit, however, is the most common mode of expression for patients. There are many reasons for this, one of which is the possibility of a monetary award. Some people believe that they deserve fiscal compensation for the erroneous actions of their physician.

Regardless of why patients sue, I 'd like people to answer this question honestly: Does a monetary award do anything to fix what happened and prevent that physician from doing it again and improve overall care of others in the same specialty?

I say no, it doesn't. Someone permanently disabled will still be disabled and have their costs picked up by Social Security. Someone with chronic pain will still have chronic pain. Someone with a disfiguring scar will still have a disfiguring scar. And the doctor who committed this terrible act of malpractice likely is not going to change their treatment practices because you won lots of money from the insurance company. The other doctors in that state suffer, because those large payouts increase the rates of all the other doctors who have nothing to do with this physician's malpractice.

• One study found that only 1.53% of patients who were injured by medical error filed a claim, but on the flip side, most events for which claims were filed did not constitute negligence. Yet researchers found that most errors are system failures, rather than individual faults.
• The medical malpractice legal system is wasteful and time consuming for both patient and doctor. Fifty-seven percent of medical malpractice premiums go toward attorney's fees, and only two-thirds of awards go to patients, who wait many years for their settlement.
  

THE SYSTEM PUNISHES PHYSICIANS, WHILE DOING LITTLE TO ENCOURAGE IMPROVED PATIENT CARE.

Instead, it encourages physicians to engage in defensive medicine, a process that adds 210 billion dollars a year (From an April,2008 study by Price Waterhouse: "The price of excess: Identifying waste in healthcare spending") in healthcare costs. Now I know all about the quoted CBO study that says that the effect of tort reform would lower overall costs by only 0.5%. But if you read the actual words, it discusses the lowered insurance premiums as the cost savings of tort reform. It even suggests that their numbers could be off dramatically when you figure in defensive medicine ("by as much as 7%"). And if you do the math: 7% of 2.4 Trillion dollars is 168Billion. This is per year. If you do the 10 year estimates that the healthcare reform plans like to quote their cost (e.g. the "goal" is to keep the 10 year cost at 1 Trillion or 100 Billion/year) then by the CBOs own supposition, 1.7 Trillion dollars in defensive medicine costs could be saved with Tort Reform. Not an insignificant amount.

Who are the beneficiaries under this current medical malpractice system? Not the patients who lose 80% of cases that go to trial, and if they win only receive a fraction of the award many years later. Not the doctors who suffer emotional and financial distress that gets passed along to the healthcare system at great cost. Who then? Well the attorneys both plaintiff's and defendant's (Sorry Dad...) alike.

So what is the solution?

My opinion differs from many of my colleagues. I don't believe that the ultimate solution involves caps on non-economic damages, or immunity from lawsuits. For reasons I will go into later (and [warning another shameless plug] I have a whole chapter about in my book to-be-released), I don't think that altering tort provisions will provide the proper psychological relief to have a demonstrable long term effect on the practice of defensive medicine. [Did I mention I also have a degree in Psychology? I don't think it is in my bio, but is now relevant to this discussion.]

I do, however, think that tort reform helps stop the bleeding that is occurring and is an adequate short-term solution.

See Part II for my discussion on the solution to truly create a system for policing physicians that is fair and equitable to all parties, that changes the practice of defensive medicine, and leads to better quality care at lower cost to society.