• Defensive medicine isn’t so cut and dry

    Amitabh Chandra and colleagues have an op-ed over at the WSJ talking about defensive medicine. I’ll let them set the stage:

    Defensive medicine—the ordering of unnecessary tests and procedures to reduce the threat of malpractice litigation—has long been a lightning rod in the debate over health-care spending. Many physicians maintain that fear of lawsuits significantly affects the practice of medicine, and that reform of the malpractice system is crucial for containing costs.

    On the other hand, several economic studies (including work by us) have found that states that have enacted malpractice reforms experienced a mere 2%-5% reduction in health-care spending compared to states that have not. This has led to a loose consensus among most economists and policy makers that defensive medicine is not an important contributor to U.S. health-care spending—and therefore that malpractice reform is not of much significance for containing costs.

    At this point, I’m roughly in agreement with them. I’ve often talked about the fact that tort reform (ie capping damages) is not health care reform, and it’s not the magic bullet for containing health care costs. Chandra and colleagues seem to agree, citing some of the same studies I do. They offer a different solution, though:

    One type of reform that has had some success in reducing defensive medicine is the adoption of national rather than local standards of medicine for juries to judge malpractice claims. The use of local standards of care drove large variation in tests and procedures across the many jurisdictions of the United States. In the 1960s and ’70s, however, the majority of states adopted national standards for judging malpractice. Michael Frakes of Cornell University found that this change has reduced variation in patterns of health care across states by 30% to 50%.

    Going forward, physician associations concerned with malpractice reform might do far better by their membership if they focused on things such as “disclosure-and-offer programs.” Here providers voluntarily disclose adverse events to affected patients and, when appropriate, make offers of restitution prior to the filing of any lawsuit. These goal of these offers, like payments from no-fault compensation funds, is to reduce the frequency of claims and avoid costly litigation.

    I don’t think this is a bad idea, and it’s likely worth a try. It might fix a lot what’s wrong in the malpractice system. I maintain it will still do little to prevent “defensive medicine”. I think a larger point is being missed.

    I do not doubt that one of the reasons that physicians order extra tests, have extra visits, and do extra procedures is because they think it will somehow protect them from lawsuits. There’s almost no evidence that it actually works, but I still accept that many physicians believe it’s true. We have to be honest, though. There’s another reason that physicians do all of these things. They get paid more when they do them.

    A lot of the time, when a doctor orders that extra test, or sees the patient that extra time, they (or the system) get paid more money. There’s an economic incentive. But who would want to admit this is true? So – perhaps – some of them justify it by coming up with another reason for ordering the test. It’s to protect them against lawsuits.

    I’m not declaring that doctors are committing widespread and conscious fraud. I’m sure the vast majority of them believe that they are “forced” to practice defensive medicine to ward off a litigious society. At some point, though, we have to acknowledge that practicing defensive medicine is also quite lucrative. As long as that remains the case, then all the little fixes to make docs feel safer from lawsuits may have no impact on actual health care spending (which is what research seems to show).

    The malpractice system is broken. I have said that many times. I think it needs to be fixed, to protect both patients and physicians. But it’s not the “cause” of our incredibly high health care spending. Economic incentives likely have much more to do with that than lawsuits.


    • I don’t get paid more if I order more tests.

      However – and I think this is a bigger problem than most appreciate – I do get pain more if I see more patients. So my institution, like most, pushes for volume. That means that I (and my patients) are subjected to the tyranny of the 15 minute slot.

      Piet Hein said TTT: Things Take Time. It would be far less expensive for the system (and better care for my patients and more rewarding for me) if I were allowed to take the time to listen, ask questions, and explain my thought processes. I am not allowed enough time to do this consistently or well, and the results is more tests and more referrals.


      • “I don’t get paid more if I order more tests.”

        Somebody does. System pressures come from somewhere. Maybe not all of them fully due to compensation, but it plays a big role for many of them.

        • I don’t disagree that there is a system-wide incentive to order more tests. I was only trying to point out that it is simplistic to discuss this as if it impacted every actor the same way. If it were that simple, it would also be simple(r) to fix.

          As I said, I can order 20x more tests daily and it will have no impact on my salary. It will create a huge burden on me when I have to review all that useless testing, and it will put my patients at risk for pseudodisease and inappropriate treatment. But I am not under any pressure to order more tests.


          When I see a person this week and do their lab (lipids following up on their statin, thyroid following treatment, etc) and then next month they are seen elsewhere even in my own system, the labs are likely to be repeated. This is especially true with Gawande-friendly checklist-driven areas like bariatric surgery. So, the lab (which I sent along with the referral) is repeated.

          Or the patient I see with possible radicular symptoms from suspected disk disease who has not improved with 4 weeks of PT. I want to send them to the neurosurgeon to discuss the role of surgery and am told the neurosurgeon will not see them until they have had an MRI which shows a surgical lesion. Meaning he has decided he only sees patients he will operate on.

          These are badly dysfunctional systemic issues. But it is not helpful to discuss this in terms of primary care having a financial incentive to do more tests.


          • You’d know better than I, but do you ever sense pressure from specialists — whether directly through relationships or shared patients or indirectly through practice guidelines — to do tests?

            • (Caveat: this is subjective and I do not have data for anything outside my own walls. Institutions are loathe to give access to this sort of information.)

              I have the sense that others (mostly not primary care) experience pressure to order studies, but I see it as largely indirect. I have not come across any real overt pressure to order more. (I am under LOTS of pressure to refer only ‘within the family’ regardless of what would best serve the patient – but that is a quality rather than cost discussion.)

              Protocols and algorithms are a component. All the bariatric programs I refer to have a complex protocol with a huge amount of testing. None of them will accept testing done last month, even from the same lab; they use their standard orders. (The excuse is that this is the way to ensure quality and eliminate variations.) The protocol will ask for a follow-up lab after starting an ACE or diuretic for BP. A BMP will be ordered ‘per routine’ rather than the K or creatinine. The order set for following lipid lowering therapy with a statin is a fasting lipid panel and a transaminase, notwithstanding the fact that it may only be necessary to see that the LDL is in target range and that there is no evidence that monitoring transaminase helps. I could go on…

              Some of the abuse of protocols is in the service of things like quality and eliminating variation and protecting from perceived risk of litigation.

              Much of it has to do with what I think is the bigger problem: lack of time that results in opting for an easy action. Slow thinking (a la Kahneman) is harder and slower than the default from a recipe. A colleague talks about the abandonment of mindful medicine.

              The more we are pressure to work fast, to see more patients and spend less time with each, the more we are inclined to compensate by being comprehensive and conscientious by ordering tests.

              I wrote about what we call the ‘snowstorm epiphany’ here: http://bit.ly/Ajc6hV


        • The lab or imaging company gets paid more if you order tests, but they are forbidden by law of contacting doctors to push them to use more tests.

          Where doctors make money off of tests is stuff like colonoscopies or angiograms. Those are HUGE money makers for GI and cardiologists.

          Primary care PCPs dont get paid more for the kinds of tests they do.

          • GP’s don’t get paid directly for ordering tests. But if they are part of a group that includes those doctors, then it matters, if only because there might be less incentive to not order tests.

            And one of the ways to show that you are taking care of patients effectively in a 15 minute appointment is probably to order tests. It sure can impress a patient. If you need to review them, it’s another appointment…

            As a patient, the problem is systematic. As others have noted, why can’t lab results be shared? Why do MRI’s have to be more recent than 6 months (why 6 months?) Why do some surgeons want MRIs versus x-rays, etc.

            Then there is the problem of access to technology. If you have access to it, you will use it. If you don’t want doctors (or patients) to overuse expensive imaging, I suspect you will have to make it scarce. Otherwise, it will be used “just in case”.

    • Good post. There is plenty of evidence that physicians and other providers are poor estimators of litigation risk, especially with individual patients. There was a UK study of psychiatrists showing gross overestimation of the risk of being sued, although they didn’t link this to changes in practice. Of course, it’s much easier to bemoan the litigiousness of society.

      I would guess that obstetricians are the ones with the best gut sense of risk, and even then they likely overestimate.

    • When people talk about defensive medicine, I always wonder where they are drawing the line between defensive medicine and a reasonable level of caution.

    • I have been retired for almost a decade but I remember when Mass. did their whole malpractice tribunal deal, one of the issues that came up is that repeat offenders among docs is a leading cause of malprac. claims. I haven’t seen anything to negate that since. The medical profession, I recall, does a lousy job of getting rid of bad docs (same for lawyers ironically). Is this still the case?

      • Yes it is part of the problem but it is not the whole story.

        JAMA had an article a few years ago showing that 90% of all ob/gyns in Las Vegas had been sued at least once. Those lawsuits didnt all result in trials or judgments, but even if they were thrown out of court on day #1 you are still talking about spending tens of thousands of dollars to defend them.

        Now you tell me what is more likely — is it really true that 90% of all ob/gyns there broke a standard of care? Or is it more likely that at least some of those lawsuits were BS?

        • @ docjones

          I’m sure that many of the malpractice claims are bogus and that finding a cheaper way to deal with them without excluding valid claims should be part of malpractice reform. That doesn’t necessarily mean that 90% didn’t make a mistake. In sports 100% of those who are paid millions because they are the best in the world at what they do will eventually drop the ball. I understand that medicine is 1000 times more important than sports, but that doesn’t necessarily exempt it from the rule that human beings sometimes drop the ball, no matter how competent they are.

    • Great post, as usual, Dr. Carroll.

      I am surprised that there is not greater recognition of this aspect of “defensive medicine”. One of my favorite papers on the subject comes from China–where the role of the free market in healthcare is apparently expanding. The title says it all:

      Defensive medicine or economically motivated corruption? A Confucian reflection on physician care in China today.

      Chen XY. J Med Philos. 2007 Nov-Dec;32(6):635-48.

      Thanks again to everyone at TIE,


    • The studies Aaron and Austin are citing seem pretty good on first scan but I don’t understand why the conclusion from some of the experts cited would be “malpractice reform is not of much significance for containing costs.”

      Cutting 2-5% of total spend on an ongoing basis (i.e., this would not be a one-time gain like with many reforms) is an extremely large amount to shift compared to most of the other options on the table (e.g., EMRs, cutting readmissions, etc.) and in the business world, would be considered a big success.

      Moreover, unlike many other reforms which have clear trade-offs (e.g., capitation or other payment reforms), there seems to be significant evidence the malpractice systems in countries like Sweden or New Zealand are significantly better for patients and cheaper..

      • It’s not that 2-5% of costs aren’t significant. It’s that the usual methods of reform likely won’t recoup any of them!

        • Even in Texas (one of the strictest tort reform states in the country), the system is much much closer to offenders like Alabama than to New Zealand or Sweden or any of the other states. I agree that caps aren’t necessarily the answer but one would think that tort reform would have to be much more drastic to achieve results then and not necessarily something to give up on.

    • Agreeing with V’s comment, I find the conclusion that the gains from malpractice reform are small to be quite odd.

      Suppose we think that 25 percent of health spending is wasteful. If malpractice reform can reduce total spending by 2 to 5 percent, and if most of that spending was wasteful, then malpractice reform could “solve” 8 to 20 percent of the problem. As single-issue reforms go, this is not at all trivial.

      • Are you deliberately ignoring my points? I am not arguing that 2-5% isn’t real money. I’m arguing – again and again – that malpractice reform as proposed won’t actually save that money!

    • Has anyone looked at the potential economic consequences of safe harbor laws? It would encourage people to follow best practice guidelines.


      • By safe harbor law, you mean that physicians couldn’t be sued if they followed guidelines? What about a semi-safe harbor putting the burden of proof any party arguing that the guidelines should have been violated

    • I suspect in-house devices encourage overuse. When my daughter broke her leg, the doctor wasn’t sure if the growth plate was impacted. He ordered more x-rays, then a cat scan.

      Would he have trusted his best judgement if the CAT wasn’t if wasn’t down the hall? If he didn’t know he’d get to read the results almost immediately?

    • I hope I don’t sound to much like a broken record, but the main problem with malpractice in the US is that there’s so much of it.

      Malpractice is estimated to kill as many Americans as cars and workplace accidents combined. And, reading descriptions of the studies, that’s an extremely conservative estimate. And it doesn’t include operating on the wrong knee or wrong kidney.

      Which is to say: before throwing out malpractice litigation, shouldn’t we set up a system that (a) compensates people for their pain, suffering, and losses and (b) does something about assuring that the same things don’t happen again and again and again as they obviously do now?

      My guess is that reducing the amount of actual malpractice would save a lot more than just killing malpractice litigation, which only affects a tiny fraction of actual malpractice events.

    • Local rather than national standards of ccare have ordinarily favored doctors defending medical malpractice cases rather than plaintiffs. Plaintiff’s don’t get to hold doctors in, say, Bugtussle, Oklahoma to the same exalted standards of care applicable to doctors practicing at the Mayo Clinic . . .