On second thought

If you are wondering why the Affordable Care Act fails to address the role of defensive medicine in the cost of health care, I have two answers, but there may be more.

The first reason is that I suspect the lobby representing the trial lawyers had some influence. Of course I don’t have the research staff at my fingertips to prove this allegation, but I have my suspicions.

The second reason that malpractice reform was swept off the negotiating table is that well-meaning advisers were influenced by the studies, which have shown that states that enacted reforms have experienced a 2%-5% reduction in health care spending. The authors of one of these often-cited studies devaluing defensive medicine have recently rethought their position.

Amitabh Chandra, Dr. Anupam B. Jena, and Seth A. Seabury, professors of public health care policy at Harvard and the University of Southern California, wrote in the Wall Street Journal that they have reexamined the available data and question their original conclusions ("Defensive Medicine May Be Costlier Than It Seems," Feb. 7, 2013).

They wrote, "even in reform states, doctors continue to practice defensive medicine. The changes in the malpractice system have done little to change physicians’ perceptions of the risk of being sued."

The authors cited a study that found that in the five states with highest malpractice risk, 68% physicians self-reported practicing defensive medicine. Sixty-four percent of the physicians in the five states with the lowest risk of being sued similarly reported that they also ordered tests and consultations to "avoid the appearance of malpractice." This difference seems to be rather small and of little significance.

Professors Chandra, Jena, and Seabury postulate that malpractice reforms have done little to influence the defensive behavior of physicians because most reforms have focused on "restricting the size of damages without necessarily targeting the frequency of malpractice claims." As a malpractice suit survivor, I can tell you firsthand that it made no difference to me whether the award was going to be $500,000 or $5,000,000. The money involved was so far above any resources at my personal disposal that I never gave it a thought.

The problem was that I was being sued, and my professional skills and integrity were being challenged. Every day for the 7 years that it took the legal machinery to grind out a result in my favor, the dark cloud of that suit followed me around. A cap on the damages might have saved the insurance company some money had I been found negligent, but it wasn’t going to make my professional or personal life any easier.

Are there reforms that might decrease the frequency of suits? The authors suggest that the "adoption of national rather than local standards" to help juries determine negligence might be start. They also suggest "disclosure-and-offer" programs that encourage prompt and candid disclosure when mistakes occur. To determine the "true extent of defensive medicine" they recommend a large scale "safe-harbor" program in which physicians who could demonstrate that they have followed accepted guidelines would be exempt from liability.

Professors Chandra, Jena, and Seabury have done us a great service by acknowledging that their original work may have resulted in flawed conclusions. As physicians we must do a better a job of policing our own, creating realistic best practice guidelines and helping each other achieve them.

If nearly two-thirds of physicians admit to practicing defensive medicine, I am sure that is a serious underestimate of the real number. The dollar figure of the unnecessary tests and consultations that we are ordering every year in an attempt to shield ourselves from the threat of frequent suits is beyond any health policy planner’s wildest dreams.

Dr. Wilkoff practices general pediatrics in a multispecialty group practice in Brunswick, Maine. E-mail him at pdnews@frontlinemedcom.com.

If you are wondering why the Affordable Care Act fails to address the role of defensive medicine in the cost of health care, I have two answers, but there may be more.

The first reason is that I suspect the lobby representing the trial lawyers had some influence. Of course I don’t have the research staff at my fingertips to prove this allegation, but I have my suspicions.

The second reason that malpractice reform was swept off the negotiating table is that well-meaning advisers were influenced by the studies, which have shown that states that enacted reforms have experienced a 2%-5% reduction in health care spending. The authors of one of these often-cited studies devaluing defensive medicine have recently rethought their position.

Amitabh Chandra, Dr. Anupam B. Jena, and Seth A. Seabury, professors of public health care policy at Harvard and the University of Southern California, wrote in the Wall Street Journal that they have reexamined the available data and question their original conclusions ("Defensive Medicine May Be Costlier Than It Seems," Feb. 7, 2013).

They wrote, "even in reform states, doctors continue to practice defensive medicine. The changes in the malpractice system have done little to change physicians’ perceptions of the risk of being sued."

The authors cited a study that found that in the five states with highest malpractice risk, 68% physicians self-reported practicing defensive medicine. Sixty-four percent of the physicians in the five states with the lowest risk of being sued similarly reported that they also ordered tests and consultations to "avoid the appearance of malpractice." This difference seems to be rather small and of little significance.

Professors Chandra, Jena, and Seabury postulate that malpractice reforms have done little to influence the defensive behavior of physicians because most reforms have focused on "restricting the size of damages without necessarily targeting the frequency of malpractice claims." As a malpractice suit survivor, I can tell you firsthand that it made no difference to me whether the award was going to be $500,000 or $5,000,000. The money involved was so far above any resources at my personal disposal that I never gave it a thought.

The problem was that I was being sued, and my professional skills and integrity were being challenged. Every day for the 7 years that it took the legal machinery to grind out a result in my favor, the dark cloud of that suit followed me around. A cap on the damages might have saved the insurance company some money had I been found negligent, but it wasn’t going to make my professional or personal life any easier.

Are there reforms that might decrease the frequency of suits? The authors suggest that the "adoption of national rather than local standards" to help juries determine negligence might be start. They also suggest "disclosure-and-offer" programs that encourage prompt and candid disclosure when mistakes occur. To determine the "true extent of defensive medicine" they recommend a large scale "safe-harbor" program in which physicians who could demonstrate that they have followed accepted guidelines would be exempt from liability.

Professors Chandra, Jena, and Seabury have done us a great service by acknowledging that their original work may have resulted in flawed conclusions. As physicians we must do a better a job of policing our own, creating realistic best practice guidelines and helping each other achieve them.

If nearly two-thirds of physicians admit to practicing defensive medicine, I am sure that is a serious underestimate of the real number. The dollar figure of the unnecessary tests and consultations that we are ordering every year in an attempt to shield ourselves from the threat of frequent suits is beyond any health policy planner’s wildest dreams.

Dr. Wilkoff practices general pediatrics in a multispecialty group practice in Brunswick, Maine. E-mail him at pdnews@frontlinemedcom.com.

If you are wondering why the Affordable Care Act fails to address the role of defensive medicine in the cost of health care, I have two answers, but there may be more.

The first reason is that I suspect the lobby representing the trial lawyers had some influence. Of course I don’t have the research staff at my fingertips to prove this allegation, but I have my suspicions.

The second reason that malpractice reform was swept off the negotiating table is that well-meaning advisers were influenced by the studies, which have shown that states that enacted reforms have experienced a 2%-5% reduction in health care spending. The authors of one of these often-cited studies devaluing defensive medicine have recently rethought their position.

Amitabh Chandra, Dr. Anupam B. Jena, and Seth A. Seabury, professors of public health care policy at Harvard and the University of Southern California, wrote in the Wall Street Journal that they have reexamined the available data and question their original conclusions ("Defensive Medicine May Be Costlier Than It Seems," Feb. 7, 2013).

They wrote, "even in reform states, doctors continue to practice defensive medicine. The changes in the malpractice system have done little to change physicians’ perceptions of the risk of being sued."

The authors cited a study that found that in the five states with highest malpractice risk, 68% physicians self-reported practicing defensive medicine. Sixty-four percent of the physicians in the five states with the lowest risk of being sued similarly reported that they also ordered tests and consultations to "avoid the appearance of malpractice." This difference seems to be rather small and of little significance.

Professors Chandra, Jena, and Seabury postulate that malpractice reforms have done little to influence the defensive behavior of physicians because most reforms have focused on "restricting the size of damages without necessarily targeting the frequency of malpractice claims." As a malpractice suit survivor, I can tell you firsthand that it made no difference to me whether the award was going to be $500,000 or $5,000,000. The money involved was so far above any resources at my personal disposal that I never gave it a thought.

The problem was that I was being sued, and my professional skills and integrity were being challenged. Every day for the 7 years that it took the legal machinery to grind out a result in my favor, the dark cloud of that suit followed me around. A cap on the damages might have saved the insurance company some money had I been found negligent, but it wasn’t going to make my professional or personal life any easier.

Are there reforms that might decrease the frequency of suits? The authors suggest that the "adoption of national rather than local standards" to help juries determine negligence might be start. They also suggest "disclosure-and-offer" programs that encourage prompt and candid disclosure when mistakes occur. To determine the "true extent of defensive medicine" they recommend a large scale "safe-harbor" program in which physicians who could demonstrate that they have followed accepted guidelines would be exempt from liability.

Professors Chandra, Jena, and Seabury have done us a great service by acknowledging that their original work may have resulted in flawed conclusions. As physicians we must do a better a job of policing our own, creating realistic best practice guidelines and helping each other achieve them.

If nearly two-thirds of physicians admit to practicing defensive medicine, I am sure that is a serious underestimate of the real number. The dollar figure of the unnecessary tests and consultations that we are ordering every year in an attempt to shield ourselves from the threat of frequent suits is beyond any health policy planner’s wildest dreams.

Dr. Wilkoff practices general pediatrics in a multispecialty group practice in Brunswick, Maine. E-mail him at pdnews@frontlinemedcom.com.