January 11, 2012

I am a malpractice suit survivor. About 15 years ago, along with two other physicians, I emerged from a challenging 7-year journey that ended with a weeklong jury trial and a unanimous verdict in our favor.

One might assume that as a result of this painful chapter in my life, I am very careful to request lab work and consultations that might have even a remote association with each case I see.

Actually, exactly the opposite is the case. I think this counterintuitive response to my painful experience helped me realize that, from a medical perspective, the initiation of a malpractice suit is often so irrational that no battery of blood tests or imaging studies can protect me. So I might as well continue to practice the best medicine I can and hope for the best. Establishing a sympathetic and caring relationship with patients may help minimize the risk of a suit. But, as in our case, the family of this very premature infant had recently arrived in town and two of us had never met them.

Although I have arrived at a point in my career where I am comfortable practicing very little defensive medicine, I fear I remain in the minority. In a recent study, a team of researchers at Dartmouth Medical School in Hanover, N.H., reported that 42% of the primary care physicians they surveyed felt that patients received too much care (Arch. Intern. Med. 2011:171;1582-5). When asked about the causes of aggressive care, 76% felt that malpractice concern was a contributor. (More than half also felt that clinical performance measures were contributors). Some 83% felt that they could be "easily sued" if they failed to request a usually ordered test. However, only 21% felt that they would be vulnerable if they requested a nonstandard test.

Unfortunately, many of the reports I have seen underestimate the magnitude of the problem because younger physicians may not realize that they are already practicing defensive medicine. The problem has been going on for so many years that today’s graduates have been trained by physicians who themselves were trained by physicians who were probably unaware of the circumstances in which the original unfortunate physician was sued for failing to order a test. Irrational habits that are built on lawsuit fears can become codified just as easily as good habits that are based on good science.

Is there a solution to litigation-stimulated aggressive care? I don’t think telling my "success" story – surviving a malpractice suit with my family, my marriage, and my practice intact – is the answer. Although it may have been a turning point in my life, the take-home message is certainly not "Don’t worry; a malpractice suit isn’t all that bad."

We missed one opportunity when the HMO era came to a crashing end. If well implemented, plans that both reward and defend physicians who practice lean and safe medicine could have gone a long way toward discouraging the malpractice suits of physicians who practice good but not aggressive medicine.

Another missed opportunity occurred when President Obama initially laid out his plans for health care reform. If tort reform on a national scale had been included as one of the cornerstones of the package, a groundswell of support from physicians might have kept up the momentum for a sensible and workable plan. But the ball was fumbled and unfortunately many of us still feel forced to play defense, even though we know it’s not in the best interest of either our patients or our country.

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