Absent from any ledger

I've been meaning to write an additional follow-up post about one thing President Obama mentioned in his State of the Union address, and am only just now getting around to it. As a bone he seemed to throw toward the ascendant GOP, the POTUS mentioned a willingness to consider malpractice reform as the health care reform bill is tossed around during this next Congress.

I, of course, think this is just dandy. I am, after all, a doctor. However, I think it's dandy because I really do believe it will lower health care costs in America.

During my morning commute the next day, they were fact-checking the speech on Morning Edition. Among the things they questioned was how much malpractice costs contribute to health care costs overall. The take-home lesson is that tort reform would save very little money. A similar argument was made a while ago in the Times, and the amount that could be saved was described as a "rounding error" because it would be so small.

I think this misses the mark. Buried in the Times piece is this exchange:

But it’s not just the cost of premiums and litigation. What about the charge that it causes doctors to practice “defensive medicine,” ordering tests that are expensive and unnecessary?


A 1996 study in Florida found defensive medicine costs could be as high as 5 to 7 percent. But when the same authors went back a few years later, they found that managed care had brought it down to 2.5 to 3.5 percent of the total. No one has a good handle on defensive medicine costs. Liability is supposed to change behavior, so some defensive medicine is good. Undoubtedly some of it may be unnecessary, but we don’t have a good way to separate the two. [italics in original, but emphasis added]

In other words, nobody really knows how much so-called "defensive medicine" (or "CYA medicine" -- you figure it out) really costs. Allow me to suggest that it costs a whole hell of a lot.

I defy you to find a medical provider who has never ordered tests he or she knew to be unnecessary in order to placate an anxious or irate or demanding patient or parent. This is not to say that anxious/irate/demanding health care consumers do not sometimes have real medical problems that are discovered because they pressed for further testing; medical providers are fallible, and sometimes the tests prove to be more important than initially suspected. But there are, I guarantee, innumerable instances when tests or consultations are ordered with low suspected yield, and with little or no useful outcome.

Speaking merely for myself, I try like the dickens to avoid ordering unnecessary tests, and I go to great lengths to explain why I don't think they are indicated. I try to do this in a way that addresses parents'/patients' concerns, so as to avoid making them feel ignored or dismissed. But sometimes the demand persists, and it's a hard call whether it's better to acquiesce or have a pissed-off patient.

Nowhere is there a box to check "I am ordering this to appease a demanding mother" or "This test is to cover a plausible number of obscure diagnoses, thus creating the appearance of due diligence and limiting potential liability." No provider is going to put any indication of this reasoning in the medical record. In fact, just the opposite is likely, with physicians and other practitioners making an effort to explain why they did what they did in case the chart is ever audited by insurance carriers. These costs are, and will remain, hidden.

How much of an impact would tort reform have? I have no idea. But I suspect it is much greater than any study would be able to determine a priori.


  1. Agreed that it would be difficult to tease out this sort of data in anything but an anecdotal way, which would not yield useful information to inform a policy decision.

    My a priori assumption, though, is a bit different than yours. Let's say tort reform were enacted in the states where you practice, and the likelihood that you would be sued for something going wrong with a patient after the fact, much less actually being found liable for a significant amount of money, were significantly reduced.

    In such a world, would you order more tests, less tests, or the same amount as you do now? Would you treat patients more aggressively, more conservatively, or at about the same level as you do now? Would you prescribe more medications, fewer medications, or about the same amount as you do now? Would you refer patients to other specialists or advise they get second opinions more, less, or as much as you do now?

    My suspicion -- it's only a suspicion but it's a damned strong one -- doctors with professional integrity would not change a thing about how they dispensed advice, treatment, or functionally anything else related to their actual practice of medicine. I won't argue that a lot of unnecessary tests and procedures are done, but I've always thought that as you suggest, irrational patient decisions, rather than doctors fearing lawyers, are at the root of them.

    Now, let's further assume that this hypothetical reduction in risk profile had a direct and material effect on your malpractice insurance rates. Would you reduce the rates that you charge your patients and their insurers, passing the savings along to them, or would you leave your rates where they are and pocket the increased income? If a given doctor is not in private practice but rather employed by an institution like a hospital, university, or a large medical practice group, is she even in a position to exercise effective control over the rates charged for her services -- and if so, what is the likelihood that this business entity will reduce rates rather than enjoy increased profits?

  2. First of all, I don't think my practice would change dramatically. As I said in the post, I go to the greatest lengths I can to avoid unnecessary tests, consultations, treatments, etc. However, there are certainly times when I've encountered irrational patient decisions, as you say, and have been faced with either an overtly displeased patient or compromising on what I consider the very best medicine. (I have never ordered something I knew to be patently harmful.)

    I'm not sure how much of this is driven by fear of litigation. In addition to suing, which actually has to pass a pretty high bar to advance at all, patients have the option to complain against my license. This has no bar at all, and most states make one go through a remarkably tedious process to answer even the most obviously frivolous complaints. Once a complaint has been lodged, it can complicate credentialing, subsequent licensing, obtaining insurance, even if the complaint is dismissed outright.

    I've never been in a position to decide how my patients are charged. Were I in such a position, and were my malpractice premiums to decline, I like to think I'd have the integrity to pass the savings along.

  3. BTW, I didn't intend to imply a lack of integrity on your part; please accept my apologies if you (or any other physician) read such a suggestion into my comment.

  4. No worries, I didn't take it that way at all.

    Part of the problem (which is admittedly more complicated than simple fear of litigation) is that it is actually quite difficult and time-consuming to explain why what patients may want is not really indicated, and you're not going to order it. It's challenging and often frustrating, and lots of providers patently don't care to take the time.