Fear of Malpractice Litigation

Lots of people fear visiting the doctor's office for a variety of reasons, among them not wanting to deal with potentially uncomfortable situations, bad news, for instance.

And doctors, what do they fear?

The judge's gavel, for one thing. A recent report in Health Affairs is a reminder how physicians say the threat of malpractice lawsuits forces them to practice defensive medicine, which in turn raises the cost of healthcare by reinforcing needless procedures. This has been a constant over the years, and not exactly startling, as one of the authors, James D. Reschovsky, acknowledged to me.

But Reschovsy, a senior health researcher for the Center for Studying Health System Change, says what is surprising is that it appears to make not much difference in states where there is tort reform their fear of malpractice remains.

The report, "Physicians' Fears of Malpractice Lawsuits Are not Assuaged by Tort Reforms," says that there were high levels of malpractice concerns even when risks are relatively low. Reschovsky reported on the study along with Emily R. Carrier, Michelle M. Mello, Ralph C. Mayrell, and David Katz that individual physician concerns' about their own malpractice risks are pervasive and vary across specialists. 

The report is among three published as a themed issue co
ntaining several articles exploring controversial topics of medical mistakes, malpractice lawsuits, and their defense and the patient-provider atmosphere that can provoke them, as Cheryl Clark of HealthLeaders Media wrote on Sept. 7.

The price tag for malpractice liability and defensive medicine comes to $55.6 billion a year, or 2.4% of healthcare spending, far lower than the American Medical Association's estimate of between $70 billion and $126 billion.

Still, we're talking billions of dollars. I talked to Reschovsky, focusing on the fear of malpractice that he targeted. In the study by Reschovsky and his colleagues, they say the "results raise the possibility that physicians' level of concern reflects a common tendency to overstate the likelihood of 'dread risks'—rare but devastating outcomes—and not an accurate assessment of actual risk."

To deal with litigation and its impacts, various states have adopted tort reform, some more effectively than others. The reforms include changing the way malpractice claims are addressed, including caps on various types of damages, as a way to respond to existing levels of overall practice risk, according to Reschovsky.

Yet, in the end, "many policies aimed at controlling malpractice costs may have a limited effect on physician malpractice concerns," Reschovsky and his colleagues state.

The physicians' attitudes, despite different state responses to malpractice, "were incredibly surprising," Reschovsky says. "Doctors are very fearful of malpractice, irrespective of the objective risk they face," he says.

There were variations in concern across specialties, physicians generally thought to be at higher risk for malpractice claims, such as emergency physicians and obstetrician-gynecologists—expressed greater concern.

 "For physicians, the idea of being sued is a great affront, emotionally, hassle-wise, and financially for that matter," Reschovsky adds.  "No one wants to be accused of doing harm. Most doctors do their jobs and want to help people."

That is certainly true, and the weight of potential lawsuits is a shadow that physicians try to live with, or elude. The fact is in the proverbial litigious society; nearly anyone in the world invites potential litigation, especially those in the public world, including journalists. In the 1980s, I wrote an investigative piece about a businessman, who later sued the newspaper I worked for, claiming damages, but a jury dismissed the civil lawsuit as invalid.

I wasn't named in the lawsuit, nor was I a defendant; the newspaper was. But the continued presence of the lawsuit, the shadow of the plaintiff's accusation, was an endless stream of constant worry and stress for me. I'll never forget when I asked our lawyer if he thought I would have to testify. "Oh sure," he said cheerfully, "We can't have Hamlet without Hamlet."  Thanks, Mr. Attorney, I said.

As a young reporter, in the end, I learned many lessons, including the fact that what you do, even if you feel you are so right, in your motivations and outcome, can certainly be tested in a court of law, with the end result never certain. For at least a month, even after the case was resolved successfully, I felt the most significant journalism I truly wanted to write about was about parades, or Easter egg hunts. Basically, I didn't feel like doing my job; that was my internal defense against potential litigation.

For physicians, defensive medicine is often their barrier against litigation, but it probably isn't the best idea. Although analysts disagree about the scope and cost of defensive medicine, physicians "consistently report they often engage in defensive practices out of fear of becoming the subject of a malpractice lawsuit," according to Reschovsky and his colleagues.

In another Health Affairs report, by Harvard law and public health professor Michelle Mello, associate professor of surgery Atul Gawande, MD and others, it was estimated that defensive medicine was extremely costly, in terms of overall healthcare costs, making up $45.6 billion per year.

Ironically, the fear of litigation may compromise physicians' ability to communicate effectively with patients, particularly in disclosing medical errors. Translation: it affects physicians doing their jobs.

While defensive medicine has been practiced for years, it is a particular problem in healthcare reform, Reschovsky and his co-authors write.

Under healthcare reform, financial and organization changes have introduced new sources of stress for healthcare providers, sharpening their demands for liability reform in exchange for their support for other health reform measures, they write.

And the mere presence of defensive medicine poses a liability risk that is an "obstacle to health reform's ambition of moving physicians toward more cost-effective care," according to the authors.

Referring to the fear of malpractice report, "I think it has important policy implications in terms of how we go forward in terms of reforming malpractice laws," Reschovsky says. "The fundamental way of reforming the system is take it less confrontational. The malpractice system does serve a public benefit, in terms of motivating physicians to stay at the top of their game and making the patient whole for when bad things happen."

"There are some models out there that would take resolution of the malpractice claims out of the court system and make it something more like workers' compensation," he says.

Dealing with the issue is extremely important to reduce costs in healthcare reform because "if physicians are fundamentally fearful of being sued they'll still order that extra test," he says.

Sometimes what President Franklin D. Roosevelt said in his first inaugural address  about economic struggles at the time may be important to remember in the battle inside our own heads in dealing with potential litigation. "The only thing we have to fear is fear itself," the president said in 1933 about the U.S.