“Defensive medicine”-when doctors order needless tests to establish a medical record for their defense in case they are sued-is an increasingly common practice that should concern every American.
Defensive medicine exacts huge costs, in both fiscal and human terms. Take a recent story on a University of Washington and Harvard Medical School study. Many women were alarmed to learn that nearly one-third of those who undergo annual breast cancer checkups for a decade can expect to get at least one “false positive”-that is, they will be told they may have breast cancer, when they do not.
“People always imagine the worst,” one professor of health law told The Washington Post. “These women go through hell.” Easier to quantify are defensive medicine’s costs to society. The health economics firm of Lewin-VHI in 1991 estimated that doctors and hospitals spent $25 billion on defensive medical practices.
High Wire Act
I am an oncologist, not a psychologist. While I know a false positive can create fear and depression, I am in the business of avoiding something far worse-a false negative that can kill. The reality of being a physician today is a high-wire act in which we must balance deadly health threats to our patients against real costs to them in the form of discomfort, money and peace of mind.
These judgments calls are tough. They become far tougher when a lawyer looks over your shoulder as you perform a medical examination.
What do I mean by this? Consider a simple country-to-country comparison. In Sweden, false positives are only one-half to one-fifth those in the United States, with no apparent increase in missed cancers. The reason for this disparity, according to Philip J. Arena, MD, a Boston radiologist and co-author of the study on false positives, is our malpractice system. He says fear of lawsuits puts pressure on radiologists to over-diagnose breast cancer so they won’t be blamed later for missing a nascent tumor.
In Sweden, doctors are allowed to use their judgment to determine when a test should be conducted. In the United States, legal considerations often overrun medical judgment. Medical malpractice costs increased more than 48.6 percent from 1990 to 1994, far outpacing the 16.6 percent increase in overall tort costs these same years.
The distorting effect of our liability laws on medical practice does far more harm than generate false positives and fear among women. The specter of lawsuits often denies people access to healthcare itself. Examples are legion: the “lawsuit tax” adds $500 to the cost of a two-day maternity stay; fear of lawsuits has forced family physicians in some states to stop delivering babies; the threat of litigation has killed the only U.S. prescription drug ever approved for morning sickness; it is keeping new and better contraceptives off the pharmacy shelves.
Drastic Rethinking Needed
I see two areas in which we need a drastic rethinking of the way law and medicine interact. In a medical practice, as in life, trade-offs between risks and costs are unavoidable. We need to reform our laws so that doctors can use their training and judgment to better manage these trade-offs. And we need to let doctors share responsibility with patients, allowing people to find their own trade-offs between risks and costs and then be responsible for making their own informed decisions.
California provides a model for the first of these solutions in the form of limits on medical liability. A recent Stanford University study found that in states that adopted California-style medical liability reforms, hospitals reduced defensive medicine expenses without compromising patients’ health.
“If malpractice is inducing too much treatment, what you should do is reduce malpractice pressures,” said one of the study’s authors, Stanford economist and lawyer Daniel Kessler.
For doctors and patients alike, managing risk against cost and inconvenience is a precarious ballancing act. But it is one that will work much better when the figurative presence of a trial lawyer departs from the examination rooms.
Richard E. Anderson, MD, is a medical oncologist, clinical professor of medicine at the University of California, San Diego, and Chairman of the Board of Governors of The Doctors’ Company.