Stuart Taylor, Jr. on the need for malpractice reform:
Whatever the number, surveys of doctors and anecdotal evidence — even allowing for self-serving exaggeration — suggest that the occurrence [of defensive medicine] is high. A stunning 93 percent of Pennsylvania specialists in high-risk fields admitted practicing defensive medicine, according to a 2005 survey by the Journal of the American Medical Association. So did 83 percent of high-risk specialists in a 2008 Massachusetts Medical Society survey. That study also found that respondents’ fear of liability accounted for almost 30 percent of the CT scans and MRIs they ordered and had spurred 28 percent of them (including 44 percent of OB-GYNs) to avoid treating high-risk patients. …
Similar considerations explain why we already have specialized courts without juries for vaccine liability, workers’ compensation, bankruptcy, and tax cases.
(cross-posted from Point of Law)
Unnecessary testing and prescribing is often the first example that comes to mind in discussions of defensive medicine, but Stuart Turkewitz, M.D., explains why needless hospital admissions, especially of older adults and those with chronic medical problems, should also be seen as a prime example. Just to lend interest, Dr. Turkewitz, an internist and geriatrician, contributes the views as a guest blogger at the New York Personal Injury Law Blog, published by his lawyer brother Eric.
Throckmorton is losing patience with pathology and radiology reports that hedge and dodge instead of laying things out straight:
Oh, I miss the days when you got a radiology report that said, “fracture right 3rd rib, no pneumothorax”. Because of frivolous lawsuits radiologists have learned to be vague, noncommittal and to pass the buck of possible litigation. So now you get a 2 page report that says “linear lucency in right 3rd rib, clinical correlation recommended, underinflated lung fields cannot exclude underlying interstitial disease and or masses. CT recommended for further evaluation, if condition warrants.” along with several other paragraphs of lawyer imposed legalmedspeak….
Falls are considered “never events” under Medicare guidelines and of course are the subject of litigation against hospitals and other providers. The costs of overreaction to fear of being charged with error are not so readily measured, but are only too real:
If hospitals are scrutinized for the occurrence of falls, the natural tendency will be to focus on such events even at the expense of competing (and perhaps more important) outcomes. Unintended consequences are likely to include a decrease in mobility and a resurgence in the use of physical restraints in a misguided effort to prevent fall-related injuries.
[New England Journal of Medicine via KevinMD]
Update to the Hamilton County medical malpractice case we discussed in May. Four jurors have signed affidavits claiming that they were “coerced” by the judges’ instructions demanding a verdict into finding for the plaintiff rather than deadlocking the jury; one or two others deny that this happened. (Chattanooga Free Press, Jun. 14, Jun. 24, and Jun. 28; h/t J.T.)
While the “Allen charge” the judge gave appears to violate Tennessee law (which, unlike federal law, disapproves of such instructions), reading between the lines of the news stories, it seems that the defendants sandbagged any objection. As one can see, the journalist did not know enough law to ask the follow-up question “Did you object at the time to the jury instruction?”, which would be the critical inquiry. (Though it is possible that she did know, but had that part of her story cut by editors.) If this is the best grounds of appeal for the defendants, and plaintiff’s lawyers are correct that there was no objection at the time, the defendant is facing a steep uphill battle. Generally, courts don’t like to go wading elbows deep to scrutinize the jury deliberations; otherwise, every trial would be followed by a collateral trial into the claims of jurors, and losing parties would have the incentive to lobby jurors to testify against their verdict. (I learned this the hard way in my first appellate briefing as a junior associate.)
One out of ten colonoscopies result in nausea and vomiting; about one in 1000 colonoscopies will accidentally perforate the intestine, with potentially life-threatening side effects if not treated in a timely fashion. Kristen Freeman was one of the unfortunate one in 1000. While she complained of nausea and vomiting, she disregarded the instructions given to her about reporting her other symptoms, and so medical staff treated it like a more common case of nausea. By the time she admitted that her situation and pain was more dire, complications set in, and she suffered cardiopulmonary arrest, which in turn led to severe brain damage.
I won’t quibble with the jury’s assessment of damages of $12 million: Freeman was 33 and is now disabled for life, and in the randomness of noneconomic damages, $12 million isn’t the craziest award out there. But that the Hamilton County, Tennessee jury found gastroenterologist Michael Goodman 51% liable seems arbitrary. If doctors are required to assume that every patient reporting nausea but denying their situation is an emergency might be hiding more serious symptoms, and require them to go to the emergency room for testing (as the plaintiffs’ attorney argued Goodman should have done here), then that’s 100 wasteful emergency room cases for each real case—and not even a prevented case, since most patients follow instructions and report to the ER on their own when symptoms specific to perforation appear.
The article is on the Chattanooga Free Press web site, but the interesting discussion is in the comments, with friends of Freeman and seemingly knowledgeable doctors kibitzing. Freeman’s supporters argue that she did not actually experience any emergency symptoms and thus was not at fault at all. Even if true, that implies that they feel Goodman should be held responsible because he did not anticipate that Freeman was actually having an emergency when she presented asymptomatically: again, a demand for defensive medicine.
White Coat begins taking notes on how many times he practices defensive medicine in the course of a day in his emergency room, and concludes that, no, the whole phenomenon isn’t just a figment of his imagination the way so many lawyers say it is. More: Max Kennerly takes an opposing view, and White Coat returns for a followup post.
It’s enough to exasperate WhiteCoatRants (Oct. 20):
…Utter the terms “chest pain” and “trouble breathing” in the same sentence and with some doctors you’re getting a chest CT. It doesn’t matter that you have a cough, runny nose, that the chest pain is burning and only occurs when you cough, or that half the people in town have influenza because they didn’t get their flu shots. Even if bronchitis is the clinical diagnosis, there is still a 0.0001% chance that you could have a pulmonary embolism along with your bronchitis and we don’t want to miss it, because if we do, it may cause you to die and result in a lawsuit against the physician. Some doctors aren’t willing to take even the 1 in 1,000,000 chance that they’ll be sued. …
If a doctor doesn’t get every conceivable test on a patient and there is a bad outcome, then the doctor gets smacked with a lawsuit because the doctor didn’t do enough. Unless something changes, more and more patients coming to the emergency department will get megaworkups so nothing gets “missed.”
Then I read that some pompous plaintiff’s attorney said somewhere that “defensive medicine” was a myth. His theory was that if doctors do an extra test that catches a disease while it’s still treatable, then it is “good medicine,” not “defensive medicine.” Either he doesn’t get it because he is ignorant or he doesn’t get it because that attitude helps him afford his chalet in the Swiss Alps.
Medicine will never be perfect.
While on the subject, prominent health economist Uwe Reinhardt has cited our medical liability system as an important reason costs are significantly higher in the U.S. than elsewhere (PoL, Nov. 16). And KevinMD’s excellent section on defensive medicine has numerous posts in recent months we still haven’t gotten around to linking, including: guest take by “Dr. SSS” on the “two most expensive words in medicine” (“Sometimes it is difficult for me to understand if I am really treating myself or the patient.”); background on the $210 billion estimate that has been bandied about; E.R. visit + chest pains = obligatory catheterization?; quote from PandaBearMD (“Why risk our own money when we can use somebody else’s to protect us, even if it costs millions?”; a British visitor’s view of immobilization collars; don’t put the doc’s name on the chart!; and more reader reactions (“even if a patient has a good relationship with a physician and is willing to forgo various diagnostic tests, the family can decide to sue later if there is a bad outcome. … it is far easier to just order the test”)
We’ve often touched on the subject of lab testing and defensive medicine, but as Happy Hospitalist points out [Oct. 11], ordering needless testing is by no means the only way the various parties endeavor to avoid liability. Another is the superfluous communication of not-really-urgent abnormal test results, sometimes on a doctor’s pager at 4 a.m.:
Unfortunately, patient safety is rarely an issue. It’s a giant game of shifting liability. The lab documents they notified the nurse–>lab off the hook if something bad happens. The nurse notifies the doctor —> nurse off the hook if something bad happens. Doctor is left with a critical value called 10 or 20 times a day, interrupting the entire flow of patient evaluations and discharges. Every time, I must stop what I’m doing and answer a page for a critical lab value, I lose valuable face time with patients. And it all adds up over the course of a day. I wouldn’t have a problem with the system, except that critical thinking has been removed from the equation. The nurse is not allowed to make judgments as to whether a phone call is warranted or not.
As a default protocol of calling all critical lab values, the liability is shifted up the educational food chain, landing ultimately on the physician’s lap. Often times a nurse is not allowed to not call a critical lab value. The problem is, what the hospital has defined as critical, does not apply to the vast majority of critical lab values reported. What’s considered critical by hospital standards, is a normal or chronic value for [that particular] patient.
Whole thing here.
The New York Times’s Tara Parker-Pope doesn’t pick up on the tort incentives that might cause this to happen, but Glenn Reynolds does.
University of Iowa professor Arthur H. Miller (who is not the NYU Law professor Arthur Miller) allegedly traded grades and offered to trade grades for second-base action with female students, appropriately resulting in criminal charges and being placed on leave by the university. Paul Caron points us to this Chronicle of Higher Education blog post that says Iowa has ordered all of its professors to undergo sensitivity training to avoid sexual harassment. Because obviously a professor who would demand students let him fondle their breasts for a grade would never have engaged in such a behavior if only he had an additional hour of sensitivity training.
What this is really about is lawsuit prevention. Just as a doctor fearful of being sued will order an inefficient, wasteful, and possibly counterproductive medical test, an employer fearful of being sued will insist upon inefficient, wasteful, and possibly counterproductive sensitivity training.
A doctor writes on the Kevin MD blog: “[M]eaningful control of the cost of medicine will have to go hand in hand with tort reform.” Read the comments, also.