The High Costs of Defensive Medicine

Richard E. Anderson, MD, FACP

Dr. Anderson is a medical oncologist, clinical professor of medicine at UCSD and chairman of the Board of Governors of The Doctors Company.

From the San Diego Union-Tribune, 14-Jun-1998 Sunday

“Defensive medicine” is an increasingly common practice that should concern every American woman—the growing tendency of doctors to order needless tests to establish a medical record for their defense in case they are sued.

Defensive medicine exacts huge costs, in both fiscal and human terms. Take a recent story on a University of Washington and Harvard Medical School study. Many women were alarmed to learn that nearly one-third of those who undergo annual breast cancer checkups for a decade can expect to get at least one “false positive”—that is, they will be told they may have breast cancer, when they do not.

“People always imagine the worst,” one professor of health law told The Washington Post. “These women go through hell.”

Easier to quantify are defensive medicine’s costs to society. The health economics firm of Lewin-VHI in 1991 estimated that doctors and hospitals spent $25 billion on defensive medical practices.

I am an oncologist, not a psychologist. While I know a false positive can create fear and depression, I am in the business of avoiding something far worse—a false negative that can kill. The reality of being a physician today is a high-wire act in which we must balance deadly health threats to our patients against real costs to them in the form of discomfort, money and peace of mind.

These judgments calls are tough. They become far tougher when a lawyer looks over your shoulder as you perform a medical examination.

What do I mean by this? Consider a simple country-to-country comparison. In Sweden, false positives are only one-half to one-fifth those in the United States, with no apparent increase in missed cancers. The reason for this disparity, according to Philip J. Arena, a Boston radiologist and co-author of the study on false positives, is our malpractice system. He says fear of lawsuits puts pressure on radiologists to over-diagnose breast cancer so they won't be blamed later for missing a nascent tumor.

In Sweden, doctors are allowed to use their judgment to determine when a test should be conducted. In the United States, legal considerations often overrun medical judgment. Medical malpractice costs increased more than 48.6 percent from 1990 to 1994, far outpacing the 16.6 percent increase in overall tort costs these same years.

The distorting effect of our liability laws on medical practice does far more harm than generate false positives and fear among women. The specter of lawsuits often denies women access to healthcare itself. Examples are legion: the “lawsuit tax” adds $500 to the cost of a two-day maternity stay; fear of lawsuits has forced family physicians in some states to stop delivering babies; the threat of litigation has killed the only U.S. prescription drug ever approved for morning sickness; it is keeping new and better contraceptives off the pharmacy shelves.

I see two areas in which we need a drastic rethinking of the way law and medicine interact. In a medical practice, as in life, trade-offs between risks and costs are unavoidable. We need to reform our laws so that doctors can use their training and judgment to better manage these trade-offs. And we need to let doctors share responsibility with patients, allowing women to find their own trade-offs between risks and costs and then be responsible for making their own informed decisions.

California provides a model for the first of these solutions in the form of limits on medical liability. A recent Stanford University study found that in states that adopted California-style medical liability reforms, hospitals reduced defensive medicine expenses without compromising patients’ health.

“If malpractice is inducing too much treatment, what you should do is reduce malpractice pressures,” said one of the study’s authors, Stanford economist and lawyer Daniel Kessler.

With medical liability reform working well at the state level, the obvious next step for lawmakers is to enact such reforms on a national level.

The obvious next step for doctors—based on the large numbers of breast cancer “false positives”—is to be more explicit about the meaning of test results at each stage of the process. We must tell patients that mammograms do not diagnose cancer. They are screenings, nothing more than shades of gray on sheets of film, that can only indicate the likelihood that a given patient suffers from breast cancer now, or has a greater-than-normal likelihood of developing breast cancer in the future.

Patients, in turn, who receive a “suspicious” result from a mammogram should take responsibility for making sure that they allow their doctors to schedule follow-up tests.

For doctors and patients alike, managing risk against cost and inconvenience is a precarious balancing act. But it is one that will work much better when the figurative presence of a trial lawyer departs from the examination rooms.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.