Wednesday, February 16, 2011

Practicing Defensive Medicine: Our System is Broken

Well, the gig's up & the secret's out.  We physicians practice defensive medicine, at least as reported at the American Academy of Orthopedic Surgeons annual meeting today.  What's that, you ask?  That's where we order tests, prescribe medications, and generally do things, not because we believe it to be indicated and called based upon our training and the evidence before us, but rather, because we're afraid of being sued.  Sometimes we even avoid doing things just out of fear of litigation.  How's that for some apples?  We all want the best care in the shortest amount of time at the cheapest cost.  It turns out we can have two out of the three at any given time, but probably not all three all at the same time. 

The Pennsylvania Orthopaedic Society got 72 of its members to agree to note why they were ordering tests over the course of 2,068 patient encounters.  Whether the patient was evaluated in the office, emergency room, or other setting, the orthopedic surgeon checked a box to denote testing either for clinical reasons or for defensive purposes.  It turns out that 20% of all tests ordered were for the latter rationale, accounting for 35% of total costs ($113,369 out of $325,309 for this small cohort).

Why?  Think about the prevailing thought process under which we physicians work:  it's not a matter of if we're going to be sued, but when we're going to be sued.  As expected, the surgical specialties like obstetrics & neurosurgery are more likely to be involved in litigation due to poor outcomes.  Where else are we expected to be perfect each & every time (not that I'd settle for less) getting everything done yesterday (immediately) for the least cost possible while knowing that our reimbursement will be pennies on the dollar and while Congress threatens to dramatically cut Medicare payments each year.  Something's gotta give and it's our system - it's broken!

How's this all tie in together?  When your expectations aren't met, we get sued.  So what's a doc to do?  Practice defensive medicine.  The problem is that this drives up costs (estimated at $100B-$178B in 2005) that are then passed back to you & me (approximately $, while exposing you to excess, unnecessary radiation, procedures, and medication side effects.  Here's the worse part:  in a study published in the New England Journal of Medicine in May 2006, 37% of claims did not involve any medical errors and no injuries occurred in 3%.  Yet, we continue to work under threat of litigation.  Now, I'm not claiming that all doctors are bad.  There are plenty of bad apples out there (we here in southern Nevada have our share).  But the way our system now works, all physicians are penalized for the outlandish behavior of a few.

Moreover, there are, using insurance parlance, acts of God.  Many poor outcomes are just that, acts of God, not due to negligence.  Yet, patients have developed an attitude that they are owed something just because something bad (might or might not have) happened.  Since when did I deserve something just because some bad luck befell me?  Yes, we need a system to assist those devastated by bad outcomes.  But not on the backs and at the expense of good physicians trying to do their best for you, their patient, day in and day out.  No wonder we keep looking over our shoulders and practicing defensively.  I'm not condoning this but I can certainly empathize.

One more thought about our broken system:  malpractice litigation really is a lottery, not just for the patient but also for the attorney.  If you win, they win (big).  Attorneys pocket 30-40% of the total award, so the plaintiff never sees all that money.  Therefore, attorneys must learn how to judge potential outcomes before "investing" in a case (like trying to predict dice at the craps table).  However, given our current economy, apparently there's less funding to go around.  So the latest twist to our derelict system is the advent of investment companies putting up the capital to allow attorneys to bring forth malpractice litigation with the promise of a percentage of the winnings.  If you want to diversify your investments, you can now consider malpractice in addition to stocks, bonds, real estate and precious metals.  Let's just hope President Obama can overhaul our medical tort system as promised on Monday before our system breaks down further.

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