There is a recurring theme being pushed on the public that trial lawyers are driving up the cost of healthcare by making doctors so afraid of lawsuits that they are practicing “defensive medicine” in order to protect themselves. A recent survey reported in the Wall Street Journal indicates that approximately 90% of doctors surveyed believe that doctors order more tests than needed in order to protect themselves from lawsuits, with an estimated $60 billion being spent each year on such unnecessary treatment. This report must be taken with a grain of salt at best.
First off, what exactly is defensive medicine? Is it performing medical procedures that are unnecessary? Is it tests to check for diseases that are statistically unlikely? Is it tests whose results turn out to be negative (and, therefore, deemed not needed in the first place)? There is no clear-cut definition of what constitutes defensive medicine. A quick review of the term on Google shows a number of definitions that all boil down to some variation of the following – ordering tests or procedures out of concern to reduce exposure to malpractice suits rather than out of concern for quality patient care, or refusing to treat high-risk patients or undertake high-risk procedures with the same goal in mind. In other words, it is the doctor’s motivation in ordering a test – and not the appropriateness of the test itself – that apparently defines defensive medicine for the purposes of these studies.
Even if you can define defensive medicine, how is it measured? By asking subjective questions of the doctors themselves as to how often they believe they practice defensive medicine. Are doctors keeping track of each order they write over the course of a year? Are they keeping track of each test or procedure they perform with a notation of the specific motivation that drove them to get each test? Of course not! This survey does nothing more than capture a doctor’s subjective (and clearly undocumented) “feeling” as to how often defensive medicine is practiced. And then a dollar figure is thrown in at the end of the study that is supposed to represent the cost of defensive medicine. However, without a clear definition, and without a clear test for measuring what tests and procedures are being performed unnecessarily, it is impossible to assess a monetary value for defensive medicine or test the validity of the “estimated $60,000,000,000. (Also, given that doctors are the subject of lawsuits, might one reasonably assume that the doctors have a bias in answering these questions?).
Inherent in this theory of the high costs of defensive medicine is that trial lawyers are constantly bringing frivolous lawsuits that are resulting in million dollar settlements or jury verdicts. This is simply not the case. I don’t know any reputable malpractice lawyer who sets out to file frivolous lawsuits. Those who do should be sanctioned. At our law firm, we decline the vast majority of inquiries we get from injured patients, which is in line with the experience of other law firms that specialize in medical negligence. Many of these cases are rejected only after careful review by expert physicians in the field, who tell us that they believe the care was appropriate. Furthermore, the law in Maryland requires that before a lawsuit can even be filed against a doctor or hospital, the plaintiff must obtain a certificate under oath from an expert in the same field of medicine who, after reviewing the records, has determined that the defendant doctor violated the standard of care and caused injury to the patient. Frivolous lawsuits cannot even make it past the system’s initial screening stage.
This theory of defensive medicine also leads us to a more fundamental question – what level of care does the law expect of doctors? It is a common misperception that plaintiff’s lawyers expect doctors to perform every available test on every patient, no matter what, or else they’re going to get sued. Some doctors go to great lengths to perpetuate this myth. For example, in a recent article on the topic of greedy trial lawyers, a doctor was quoted as saying (and I’m paraphrasing) that if someone comes into an Emergency Department nowadays with a headache, that person is going to get an MRI, a CT scan, you name it. With all due respect to this doctor, he is wildly exaggerating to make a point.
To answer the question of what is expected for doctors, the law has developed a standard to which health care providers must comply, and that standard is “reasonableness.” A doctor breaches the standard of care when he or she fails to do what a reasonable physician would have done in the same or similar circumstances. No more and no less. The law does not demand perfect care or extraordinary care, and the law does not punish doctors simply because there has been a bad outcome. (There is actually a jury instruction in the District of Columbia called the “Bad Result” instruction that tells jurors they cannot find the doctor liable just because there simply was a bad outcome). The law only requires that a doctor act reasonably in the circumstances.
As a simple example, let’s say that a patient (a 50-year-old man) sees his primary care physician because he developed low back pain after a weekend spent lugging around bags of mulch in his back yard. His back is painful and stiff. In that context, what level of care do we expect of the doctor? If we are to believe the theory of defensive medicine, this primary care doctor would immediately refer the patient to get an MRI, a CT scan, and a consultation with a neurosurgeon just to be sure that he doesn’t get sued. For anyone who’s ever had back pain and gone to the doctor, he or she can realize how silly this scenario is.
Let’s take another example. A 38-year-old man comes into the Emergency Department with chest pain. Questioning by the doctor reveals that he has no history of heart problems or other serious illness. It is also learned that he just wolfed down a large pizza and a few beers after his company softball game. The doctor thinks it’s probably just a case of indigestion or heartburn, but to be safe he orders an electrocardiogram to check for heart problems. This test comes back normal. Is this defensive medicine? Does this ER doctor consider it defensive medicine for the purposes of answering survey questions? Should the EKG not have been done because the odds of a heart attack were minimal? In this situation, one can easily make the argument that the EKG was reasonable. Even though the risk of a heart attack was small, the severity of harm to the patient if the diagnosis is missed is great. Shouldn’t we encourage reasonable testing that catches life-threatening illness?
There is obviously a balance between over-reacting and under-reacting, which is where the concept of reasonableness comes into play. We applaud doctors exercising medical judgment as they were trained to do, and we expect them to act reasonably. However, when doctors fail to act reasonably and injure a patient, the law provides a mechanism by which the patient can recover. At the end of the day, it isn’t trial lawyers who determine what is reasonable or unreasonable treatment. It is juries that decide, after listening to both sides of the story.