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Doctors' Malpractice Fears Hurt Health Care

Malpractice fears keep most doctors from treating patients the way they should, a disturbing new study shows.

How big a problem is it? Very, very big, says Peter P. Budetti, MD, JD, of the University of Oklahoma.

"A staggering percentage of doctors — 93 percent of them — acknowledge they did things they themselves regard as deviating from sound medical practice," Budetti tells WebMD. "Well, that is not what doctors are all about. They are there to treat patients."

Doctor Liability Fears Affect Patient Care

Harvard researcher David M. Studdert, LLB, ScD, MPH, and colleagues went to a state — Pennsylvania — in the middle of a malpractice insurance crisis. From 2000-2003, several major insurers left the state. Premiums for medical liability policies shot up.

Studdert and colleagues asked 825 doctors from the six specialties at highest risk of malpractice lawsuits — emergency medicine, general surgery, orthopedic surgery, neurosurgery, obstetrics/gynecology, and radiology — to answer pointed questions about how they practiced medicine.

The bottom line: 93 percent of the doctors say they practice "defensive medicine." It means that to protect themselves against possible malpractice lawsuits, doctors do two things. On the one hand, they may order what they feel are additional yet unnecessary tests and procedures. On the other hand, they may distance themselves from treatments — and patients — that might put the doctors at risk of a lawsuit.

Studdert's team found that:

— 92 percent of the doctors ordered tests, diagnostic procedures, or referrals for specialist consultations that they did not think were needed.

— 43 percent of the doctors say they ordered imaging tests they didn't think necessary.

— 42 percent of the doctors stopped performing procedures prone to complications (such as trauma surgery), avoided patients with complex medical problems, or avoided patients they thought might be likely to sue them.

Studdert and colleagues report their findings appear in the June 1 issue of The Journal of the American Medical Association. Budetti's editorial accompanies the study.

"This rate — 93 percent — is very, very high," Budetti says. "This is a substantial documentation of the extent to which doctors feel they are pressured into doing things that are not of value to their patients."

Studdert notes that the 93 percent figure is based on doctors with high-liability-risk specialties in the middle of a statewide liability insurance crisis. Half of these doctors already had been sued at least once. They are not typical of the average doctor. They instead represent doctors on the cutting edge of the liability insurance issue.

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Patients or Possible Plaintiffs?

"What our study suggests is that doctors' defensive postures have real impacts on patients," Studdert tells WebMD.

This, he says, comes in several forms:

— Additional services inspired by doctor defensiveness make health care more costly.

— Doctor defensiveness may lead to more difficulty in getting access to treatment for procedures seen by doctors as carrying a high lawsuit risk.

— Quality of care may decline. "Do patients get the best care if doctors are concerned about malpractice?" Studdert asks.

— Doctor/patient relationships become strained. "What does it mean to patients if their doctors are sizing them up, as it were, for their propensity to sue them? We feel that is a negative thing from a health care quality point of view," Studdert says.

If you think this makes doctors happy, think again.

"The doctors said this was impacting their professional lives quite significantly and, to some extent, their personal lives, too," Studdert says. "Doctors are caught between a rock and a hard place."

The rock is doctors' honest desire to help their patients. The hard place is the economic burden placed on them by a crumbling medical liability system.

"Defensive medicine is something doctors don't want to engage in," Budetti says. "They do not want to deviate from standard practice. They learn in medical school to do what is necessary — and only what is necessary — to patients. Given that, why at this point are we seeing so many doctors say they engage in so much defensive medicine?"

The problem is that doctors cannot reduce medical errors if they can't talk about them for fear of being sued. That seems to be an argument for tort reform. But it isn't that simple, says lawyer and doctor William M. Sage, MD, JD, a law professor at New York's Columbia University.

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Tort Reform Not the Answer

Sage was part of Studdert's research team. He's also a member of a team that studied the impact of tort reform. They report their findings in the same issue of JAMA as the Studdert study and the Budetti editorial.

Some states have enacted tough tort reforms — that is, laws that directly limit the amount of damages a plaintiff may collect from a malpractice lawsuit. Do they work?

Yes, Sage and colleagues find. But not as dramatically as some might think.

"The rhetoric of this might lead one to believe that malpractice reform is some magic bullet for the doctor supply," Sage tells WebMD. "And we do show a significant effect: If you enact tort reform, you get 3 percent more doctors than if you don't. That has the same effect on an area as giving doctors an 11 percent raise. It is not trivial, but it does not guarantee an endless supply of doctors."

Politicians, Sage says, often argue that doctors will move out of states that don't enact tort reform. That doesn't happen. What does happen is that a few more young doctors start practices in states with tort reform. Older doctors are less likely to retire. It's a significant effect, but it's not large enough to have a major impact on the medical liability problem.

"You can enact all the tort reform you like, and you really haven't done much for health care," Sage says. "Maybe you have created less of a bad system, but we still have a bad system. Litigation serves everyone poorly. There are a lot of avoidable medical errors, but most patients who are injured don't get any compensation."

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Marrying Malpractice Reform to Patient Safety

Studdert, Budetti, and Sage agree that the real answer requires a marriage between the patient-safety movement and the malpractice-reform movement.

"We still have problems with physicians altering their practices despite 30 years of tort reform," Budetti says. "Between 40,000 to 100,000 people a year are dying from avoidable medical errors. It is time to do something about this. It means getting organized medicine, plaintiffs attorneys, and health care professionals involved in patient safety movement all to work together."

Budetti argues that tort reform cannot help patients unless it provides accountability.

"Removing the threat of malpractice liability would let doctors talk freely about actual errors and near misses," he says. "But we haven't taken the next step. What about the doctor who repeatedly makes errors? What about the doctor who continually fails to meet established guidelines? How do we deal with that doctor if we remove all liability?"

Sage envisions a system that takes patient safety as its ultimate goal.

"We are perfectly comfortable with caps on damages," he says. "But real reform is not based on litigation. It has to be based on having the systems in place to detect errors, to tell patients about these errors, to offer reasonable compensation right away, and then to have panels in place to deal with the small number of disputes that will inevitably arise."

"I do believe that people in all three camps — on the plaintiff side, on the doctors' side, on the patient safety side — should acknowledge that what everybody is really worried about is patients," Budetti says. "Doctors do not want to be doing things medically wrong for patients. They feel boxed in by all this. Lawyers say they are the last line of defense for patients. And the patient safety people wake up in the morning and say we need to keep patients from being harmed by medical errors. There are people in all these camps who are good people. And it is not completely fanciful to think of them getting together."

By Daniel J. DeNoon

SOURCES: Studdert, D. The Journal of the American Medical Association, June 1, 2005; vol 293: pp 2609-2617. Kessler, D. The Journal of the American Medical Association, June 1, 2005; vol 293: pp 2618-2625. Budetti, P. The Journal of the American Medical Association, June 1, 2005; vol 293: pp 2660-2662. David M. Studdert, LLB, ScD, MPH, associate professor, Harvard School of Public Health, Boston. William M. Sage, MD, JD, professor, Columbia Law School, New York. Peter P. Budetti, MD, JD, professor and chairman, department of health administration and policy, College of Public Health, University of Oklahoma Health Sciences Center, Oklahoma City.