The tortured logic of tort reform

Being a doctor means my pulse races when I think of malpractice suits.  The response seems to have become hard-wired to my nervous system and at the first mention of tort reform parts of my brain that I don’t even seem to control jump to the fore shouting “You lie!”  (Oh, wait…. that was Wrong Way Wilson).

See what I mean?  It’s like a knee-jerk emotional response.  But when my heart stops palpitating I start to think about the logic:

We need tort reform so we can reduce unnecessary testing so that we can reduce costs.

Seems logical, right?  Let’s put aside for a minute the non partisan studies that deflate the premise:

The problem is, there’s little evidence that medical malpractice suits actually have much effect on the cost of health care. We first wrote about this back in 2004, when President Bush was making the claim. Although one 1996 study did find that so-called “defensive medicine” added between $60 billion and $108 billion per year to the cost of health care, more recent studies have disputed that assessment. In both 2004 and 2006, the nonpartisan Congressional Budget Office concluded that limiting medical malpractice claims would have little effect on the overall costs of health care. FactCheck.org

Let’s put the facts aside and follow the logic of ‘defensive medicine:’

1. I’m a physician worried that I might get sued.
2. I order unnecessary tests so that I’m less likely to get sued.
3. The tests are unnecessary by definition - the patient doesn’t need them.  I’m doing them to defend against a possible lawsuit.
4. Unnecessary tests come at the risk of unmasking spurious results (1/20 tests are ‘false positive’ - Take a simple blood test: a complete blood count (CBC) and blood chemistry.  These are made up of more than 20 separate tests, leading to ~64% probability of a false positive).
5. Unnecessary tests come with some (sometimes nominal) risk to the patient.
6. Spurious results require more testing and more intensive testing.
7. Sometimes this more intensive testing leads to procedures and other interventions based on spurious results.
8. These interventions come with some (not so nominal) risk to the patient.
9. Because of my fear of lawsuits I have subjected my patient to unnecessary testing that can lead to spurious results that lead to unnecessary interventions that sometimes harm my patients.
10. The patient didn’t need the testing in the first place, I only did the testing because I was afeared of lawsuits.
11. I sometimes harm my patients based on stuff they didn’t need done.

That to me sounds like grounds for a lawsuit.

The very thing I try to prevent with ‘defensive medicine’ increases my risk of harming my patients and lawsuits.

I’m not trying to make light of a topic so emotionally laden for me and other physicians, but when we step back from the emotional front there certainly does appear to be a lack of logic at work.

Why not just start with doing the right stuff for people?

Comments

[Gordon Moore]

I realize that this issue is not cut and dried, but your anecdote makes the point: your colleague is behaving irrationally. I've done the same in the past and I totally understand the rationale, but thinking about it I realize that I was actually increasing risk through that behavior.

If the test is unnecessary the ordering of the test is irrational. If the test is unnecessary the results of the test do not add to our understanding but distract us from the patient's true needs.

If the test ordering results in spurious results that initiate a cascade that could end up in patient harm, the unnecessary test ordering is in itself a platform for malpractice.

[vasculardoc]

there is plenty of evidence to the contrary that defensive medicine does drive up the cost of healthcare. In addition, if maplractice RVU's were included in the reimbursement, don't you think the cost of care would be less? This is anecdotal I know, but in my 7 group surgical group the lowest volume provider orders more testing than you can shake a stick at because of the threat of suits, and he will freely tell you that.