Medical Defendants and Defensive Medicine

My name is Steve, and I am a recovering defendant.



It has been a little over 15 years since I was last sued in a medical liability case, but the experience is still with me today.



Attorneys seem to be able to take these things fairly lightly. Sure, they work hard, and argue their clients' cases passionately. But at the end of the day, win or lose, they go home and start working on the next case. Maybe it is different when they are the ones being sued. Where you stand on an issue often depends on where you sit.



Physicians I have met who have been sued, though, have trouble not taking these things personally. They put a great deal of themselves into their patient care, and a lawsuit alleging that they have been negligent in that care or that they have not met the "standard of care" for their patients is often felt as a personal, as well as a professional, failure, even if they feel the care they rendered was appropriate at the time. And even if there was no wrongdoing, there is still a prolonged period of self doubt and agony leading up to the trial. Then there are the depositions and the trial itself, when the physician's life is examined under a microscope looking for flaws.



An "expert" witness for the plaintiffs at my trial testified that the standard of care required that any patient with chest pain unexplained by an abnormal EKG must have a CT of their chest. My malpractice provider even informed its other insured clients that this would now have to be considered the standard of care in our area. Although I was found not guilty by unanimous verdict in my trial, I would estimate I have ordered 4 or 5 chest CT's a month ever since then to avoid ever being put in such a situation again.


The costs in money and radiation exposure of this one change in practice is large. When multiplied by many other physicians who do not wish to undergo the personal agony and humiliation of leaving themselves and their families open to the possibility of a lawsuit, the cost is enormous. Estimates of the annual costs of "defensive medicine" are in the $100 to $200 billion range. These are likely underestimates of the costs, since the documented "indication" for a procedure is never stated as such. 83% of physicians reported they practice "defensive medicine" in a survey by the Massachusetts Medical Society last year (http://www.massmed.org/AM/Template.cfm?Section=Advocacy_and_Policy&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=23559). They reported that 18 to 28 percent of tests, procedures, referrals and consultations, and 13 percent of hospitalizations were ordered for defensive reasons.



I have survived the death of two parents and a spouse. When these deaths occurred, I never had the inclination to find someone to blame...someone to sue. In our grief and pain the death of a loved one seems "wrong," but every death is not "wrongful." We are mortals, and none of us will get out of this alive. Ultimately, our expected mortality rate is 100%, even with appropriate medical care.



Our current medical tort system does more than damage our budgets. It damages the trust our patients have for their doctors, and the trust our doctors have for their patients.



Until we are ready to recognize these economic and personal costs, and enact meaningful tort reform, we will not be able to enact meaningful healthcare reform.

These Pills Work Best When Taken Internally

A patient was referred to me for treatment of refractory hypertension. Her medication list was quite long, and I reviewed the medications with her, I asked "How many times a day do you take this one?" She took the bottle, and looked at it for a moment, and replied "I don't take this one at all. I just keep it on the nightstand." When I asked her why she wasn't taking it, she told me "Doctor, I just don't like to take medicine." I spent some time explaining to her the need to control her blood pressure to prevent a heart attack or stroke or kidney disease down the road, and that the pills were not likely to work by sitting on the nightstand. They needed to be taken internally.

The benefits of treating high blood pressure, high cholesterol, and diabetes are well documented. These treatments are cost effective, because of the reductions in cardiovascular disease they yield over time. The problem, though, is that patient acceptance and compliance are variable.

A new study released by the New England Healthcare Institute last week estimates that one-third to one-half of patients in the US do not take their medications, as prescribed. It estimates the increased cost of healthcare for these patients, based on increased needs for hospitalization, treatment of uncontrolled conditions, and early deaths at $290 billion annually. It also shows that patients with chronic diseases are less likely to take their medication correctly than are patients with an acute problem.

After all, a pain medicine can make you feel better quickly. An antibiotic can clear up an infection in a few days. While there may be some early reduction in blood pressure or cholesterol when treatment is started, blood pressore and cholesterol medications do not make you feel better on a daily basis.

It takes education and a receptive patient who is willing to endure the cost and inconvenience of taking medication daily to achieve the future benefit of preventing health problems later in life.

Prescribing medication is easy. Assuring that the patient will be a compliant partner in the treatment plan is not. Clearly, though, the medications work better when taken internally.

The Greedy Physician

In the current debate over healthcare access and financing, the greedy physician has been cast as a stumbling block for making reform possible.

Consider the finances of a solo cardiologist.

If he is fortunate to have a busy practice, he might bill about $2 million for his services in a year. About half of those services are given to Medicare patients, and Medicare pays him about 35 cents on the dollar, or about $350,ooo. About 40% of his patients have commercial insurance. These days, commercial insurance plans reimburse for services as a percentage of Medicare reimbursement rates, and he receives about 45 cents on the dollar for these services, or about $360,000 each year. About 10% of his patients have Medicaid coverage or no insurance at all, and he is paid about 25 cents on the dollar for those services, or about $50,000 per year. This gives him a total income of about $760,000 a year for the $2 million of services he rendered. About 60% of this income goes to pay for his office space, utilities, insurance, and staff. If he controls his costs well, he keeps 40%, or $304,ooo, for his personal income.

To generate that income, the physician works an average of 100 hours per week. This puts his hourly wage rate at about $50/hr, assuming we allow him "time and a half" for the 60 hours of overtime he works in a week. That's a little less than GM estimated for the total wage of their average auto worker during recent Congressional hearings.

One can argue that doctors and/or auto workers are overpaid, but their wage is about the same. Of course, the average auto worker didn't have to train in college, medical school, and residency to learn his trade. The average auto worker doesn't usually get called away from his family on nights or weekends or holidays to take care of a malfunctioning car or assembly line, and he rarely has to talk to a plaintiff's attorney if a car didn't turn out great.

To finance expanded healthcare, though, large cuts are proposed to physician's fees, which have been judged to be the real problem here. In Cardiology, for example, the proposed cuts in 2010 are estimated to be about 40%. Naively, we might think that means the physician will have to accept $30/hour for his services. In truth, though, it is unlikely that his landlord, or utilities, or suppliers will consider it their patriotic duty to cut their bills to the physician by 40%. So the 40% reduction in payments to the physician will leave him no salary at all after he pays his staff. That's right. $0/hr. I think that's less than the federally mandated minimum wage. Financially, he would do better by closing his practice and working at a fast food restaurant.

He could try to keep his practice doors open by investing in diagnostic equipment to perform testing that is done on outpatients in the hospital. That would allow him to finance the professional care he is now being asked to render for free. Too bad that Congress is preparing legislation to restrict his ability to do that.

Since he is respected in his field, he could speak to groups of physicians to educate them on the treatment of illnesses. He has been approached by pharmaceutical companies and device manufacturers who are willing to sponsor him. Too bad that Congress feels this is a conflict of interest for the physician, even though members of Congress can receive funds from lobbyists to deliver lectures on their areas of expertise.

He could layoff a large portion of his office staff, which unfortunately would eliminate those live people on the phone his patients want to speak with when they have a problem, or need a prescription refilled, or want to make an appointment. This might save him $100,000 per year in overhead.

He could always increase his work week to 120 hours. This could increase his payments by about $90,000 under the new reimbursement rates, and he would still have almost 7 hours a day to shower, sleep, and spend time with family. With $190,000 salary from staff cuts and expanded work hours, he could make almost $30/hr ... at the cost of firing staff and reducing service to his patients.

Hmmm....did someone say that Goldman Sachs is hiring? Or McDonald's?

Wouldn't this time and money be better spent taking care of patients?

A recent study published in Health Affairs estimates that the cost of time spent by physicians and their office staffs interacting with insurance companies was $21-31 billion annually, or about $68,000 per physician per year. This includes nearly 4 hours of nursing staff time per physician per day, and 7.2 hours of clerical staff time per physician per day, as well as 43 minutes per day of direct physician time.

Wouldn't this time and money be better spent taking care of patients?

A thought to consider as we debate the future of healthcare delivery in this country.

Expanded healthcare coverage...at what cost?

The Obama administration's goals for expanding healthcare coverage to those who are currently uninsured is admirable, and who could criticize such a plan? Wouldn't we all like to have the security of knowing that our healthcare needs will be met, no matter what the future brings?

Much has been written about the direct costs of such a plan. The estimates are probably no more accurate than the estimates for GM's needs to avoid impending bankruptcy.

What about the indirect costs to our society in the form of future tax increases for funding the plan, and in the form of inflation created by growing deficits that will be passed on to our children and grandchildren?

How about the costs to our healthcare delivery system, that will be forced to accept lower payment rates for providing healthcare services. One cannot afford to deliver care that costs more than the reimbursement given for very long. Neither hospitals nor physicians can make up the loss generated on each transaction by increasing the volume of transactions.

Meanwhile, our patients demand better, more accurate diagnostics and cures, despite the costs involved in providing them. Our current healthcare delivery often removes the consumer (the patient) from the financing of the purchase, which is handled by anonymous insurers or government agencies. There is always unlimited demand for a "free" service, and patients feel they are entitled to unlimited care, despite their ability or inability to pay for it.

As we transition to increased public financing of this effort, how do adjust our patients' expectations that they can continue to use services without any limits? And if limits are imposed, will they simply access the system through healthcare's back door, the emergency room, where the threat of a plaintiff's attorney's shadow is always lurking if a bad outcome occurs?

We need more than the bandaid of a new entitlement program to solve the problems of healthcare financing and delivery. We need a frank discussion of what our society's goals and objectives should be. Only then can we design a system to take us there. As Lewis Carroll wrote: "If you don't know where you are going, any road will get you there." We have come to a fork in the road. We should follow Yogi Berra's advice, and take it.