Despite the massive overhaul of health care passed by Congress, many costs will remain high, thanks to doctors' fears of potential lawsuits.
As President Obama prepares to sign into law the health-care reform bill that won congressional approval last night, many senators and representatives remain opposed to the legislation because it does too little to rein in medical costs, which are now 16 percent of the nation’s GDP. But as my colleague Jonathan Alter argued last year, history is full of examples of imperfect legislation (Social Security, civil rights) being improved by subsequent bills, and the same can happen in health care. If we are going to keep medical bills from bankrupting the country, there is no better place to start than with unnecessary care.
When I asked physicians which medical procedures were costly and commonly performed but did not help (at least some) patients, I expected more of them to justify almost everything they do. Some did. But as the NEWSWEEK article on "medicine we can live without" showed, many physicians couldn't get their nominees to me fast enough, so eager were they to spread the word about how much stupid, useless medical care there is.
The reason for that isn't surprising: doctors hate practicing defensive medicine—that is, ordering tests, surgeries, or other procedures not because the doctor knows it will help the patient but to protect the physician from lawsuits. Let me quickly add that there are many exceptions to the "hate" part, since every physician I spoke to had horror stories about colleagues happily doing tests and procedures to inflate their billables. But more typical was Angela Gardner, president of the American College of Emergency Physicians, who had a list as long as my arm of procedures ER docs perform, often for no patient benefit. They include following a bedside sonogram (looking for ectopic pregnancy, for instance) with an "official" sonogram (because if something is missed it's easier to defend yourself to a jury if you've ordered the second one); a CT scan for every child who bumped his or her head (to rule out things that can be diagnosed just fine by observation); X-rays that do not guide treatment, such as for a simple broken arm; CTs for suspected appendicitis that has been perfectly well diagnosed without it (ORs won't accept patients for an appendectomy without a CT); and ... well, there were more. But in short, Gardner told me, "I think there is plenty we could cut out without hurting patients in any way."
So why don't they? Because although doctors may hate practicing defensive medicine, they do it so they don't get sued. We've known that for a long time, but a recent survey of physicians is so replete with horror stories I can't resist sharing them.
In a poll released this month, Jackson Healthcare, a medical staffing and IT company, got 3,070 physicians in the U.S., spanning all medical specialties, to answer questions about the scope and impact of defensive medicine. Nine out of 10 physicians reported practicing it themselves, and even in Texas, where a 2003 tort-reform law caps awards for pain and suffering at $750,000, physicians practiced defensive medicine at the same rate as in other states. (Of the Texas physicians who answered, 64 percent said the amount of defensive medicine they practice has remained the same since the law passed.) Clearly, tort reform (or at least Texas's version of it) isn't the whole answer. Said one Texas doc, "Tort reform has reduced the likelihood of a physician being sued, but it hasn't changed the capriciousness of the legal system. And it hasn't changed the nature of the risk: the possibility of public humiliation and three years of being consumed in a miserable, time-consuming process."
Nationwide, physicians estimate that 35 percent of diagnostic tests they ordered were to avoid lawsuits, as were 19 percent of hospitalizations, 14 percent of prescriptions, and 8 percent of surgeries. The specter of a malpractice suit makes many physicians afraid to trust their own clinical judgment, wary of first-round tests (and so leading them to order tests to confirm the results), and likely to view patients as plaintiffs-in-waiting. All told, it adds up to $650 billion in unnecessary care every year.
And now for those horror stories. The ER, said one doc in the Jackson survey, "should have a CT head scanner at the entrance door," since "every patient gets a head CT." Another ER doc said he "routinely admit[s] low-risk chest pain patients because I know at some point in my career, one of them will go home and die from a heart attack. I will admit hundreds to avoid that one death (and possible lawsuit)." Another said he ordered 52 CT scans in one 12-hour shift: "That's $104K in one day." And another: "Any patient who presents to the ER and mentions the magic words 'chest pain,' unless they are well known by the physician, is guaranteed to undergo multiple blood tests, ECGs, stress tests, perhaps CT scans, and will incur charges of several thousand dollars. A very large percentage of these patients will have very low probability of having ischemic chest pain, yet all patients will undergo testing to prevent 'something from being missed' in the name of defensive medicine."
Like other physicians, this one bemoaned what he has to do to appease patients, such as a "paranoid new mom [who] insists her child needs a head CT after they bumped their head ... to rule out a head bleed. So to appease the lawyers and hospital administration and everyone else, I have to consciously sedate a perfectly normal 15-month-old and put them at terrible risk just to prove to a mother that children don't get head bleeds from falling over and bumping their heads!" (That "terrible risk" refers to the fact that CTs deliver a lot of radiation and thus increase the risk of cancer.) And an anesthesiologist described how he orders "lab tests, X rays, cardiac consultations, and stress tests, [as well as] pregnancy tests ... most often to cover our butts."
Obstetricians really sounded off. One described having to admit to the hospital "pregnant patients with complaints such as stomach pain, cramps, excess vaginal discharge, headache, etc." almost solely for defensive reasons: "You can't afford to give them any reason to point to you if their baby isn't perfect."
Younger physicians are especially frustrated. One described having to "order MRI scans for vague complaints that almost certainly are not due to intracranial pathology. In almost every case I am correct in that nothing is found; however, because of the potential very rare case that something could be present, everyone gets a scan. Prudence and my training would dictate that I should observe the patient, and if the symptoms worsen or the patient develops clinical signs, then the MRI scan should be ordered. However, lawyers and juries don't see it that way. If there is ANY DELAY AT ALL in the diagnosis of a condition, then they label it as 'malpractice.'"
Doctors and others are invited to share their own horror stories of defensive medicine in the comments below.