On the defense? Not exactly.

Yesterday I wrote my first post on Tom Baker's book The Medical Malpratice Myth. I talked about how the number of people injured every year is drastically larger than those who bring suits, as well as the fact that all malpractice spending (premiums, legal representation, awards, etc) amounts to less than one half of one percent of all health care spending.

A commentor was keen to pick up on another malpractice talking point -- the notion of "defensive medicine". So where does defensive medicine fit in the malpractice spending puzzle?

As far as we can tell, "defensive medicine" is one of those tiny puzzle pieces with the really strange shape (you know, the one that seems to have 2.5 sides?) -- you can't figure out where it goes until you've trudged your way through the majority of the puzzle.

That's because defensive medicine is notoriously difficult to study. First, researchers have to decide what constitutes defensive medicine. Then they have to tease out whether the effects of those actions were harmful or helpful. Given the fact that 100,000 people die per year because of medical error, some instances of defensive medicine will be helpful because they'll help reduce that number. Others will simply be unnecessary tests or more invasive procedures to ensure "certainty", leading to increased spending and even more risk.

The research that has been conducted indicates, for the most part, that defensive medicine has little effect overall and that states with tort reform have slightly lower rates of spending than those without. But one thing is clear -- malpractice fears aren't sending shock waves through the system.

• In a clinic scenario survey by the Office of Technology Assessment, where doctors were given a situation and asked how they would proceed, researchers calculated that 95% of doctors did nothing but order a test or diagnostic procedure. The principle reason doctors gave for ordering the procedure "almost all of the time" was medical indications. "Malpractice concerns" were given as a reason in less than one half of one percent of the cases. OTA researchers concluded defensive medicine is "not likely to explain very much of the huge growth in health-care expenses over the last century".

• Researchers at Syracuse examined birth records and compared cesarean delivery rates according to the number of malpractice cases per county. They found that in places with a higher malpractice risk that there was actually a slight decrease in c-sections.

• Harvard researchers compared cesarean rates to the actual hospital rates of malpractice suits and found that, controlling for all other factors, a woman who gave birth at a hospital with high malpractice rates was 30% more likely to have a c-section. Except researchers also found that giving birth at a hospital with a high c-section rate (and not necessarily malpractice rate) increased the risk of having a c-section 10 times.

• Mark McClellan (current secretary of CMS) found that heart disease expenses for the elderly grew only 5-7% less in state with tort reform (expenses grew 24% per year in non-reform states, and 17% in reform states) , and that the gains seemed to decrease after 5 years.

This research shows that, when researchers have been able to puzzle out ways to measure it, they found very small rates of increased spending and intervention due to "defensive medicine".

The bottom line is that while the evidence isn't crystal clear that defensive medicine plays no part, there's nothing that shows defensive medicine is dictating doctors' behavior. More contemporary research needs to be done (the majority of these projects were in the late 1980's and early 1990's), but there's no indication of a rash of doctors performing unnecessary procedures and tests because of their fear of frivolous lawsuits.

Comments

[Matthew Holt]

The relevant question is, did someone somewhere get paid for providing the "defensive" medicine...and unless the answer's no, then the whole argument is BS.

[ds]

I'm an ER Doc. 34 hours a week, I practice defensive medicine. There are 25,000 ER docs out there. I go to nationwide meetings, I receive publications, I talk to leaders in the field. 50% of what we discuss is defensive medicine. This isn't just some personal observation, it's what I do for a living. There is no way to study this.

[Amy Tuteur, MD]

Lie, damn lies and statistics! Comparing C-section rates to malpractice rates in particular hospitals is meaningless. The likelihood of a doctor being sued in an obstetrics case is completely unrelated to how many other doctors in that hospital have been sued. Doctors respond to national statistics.

The C-section rate is rapidly approaching 30%. This is an almost 50% increase since I started OB training 20 years ago. There is no medical reason for this. Babies have not increased in size by 50% and fetal distress has not increased in incidence by 50%.

The increased C-section rate is not medically necessary, it is a response to the legal realities. It is virtually impossible to defend a vaginal delivery of an impaired baby in a courtroom.

The rising C-section rate is possibly the clearest indication of defensive medicine that there is.

[Kate]

Amy,

I beg to differ. The rising c-section rate has many explanations, one of which is women's changing preferences for births. Also the general belief that VBACs were unsafe until a few years ago.

[Amy Tuteur]

Dear Kate,

Your comment may actually prove my point. The fact is that VBACs were considered safe until a few years ago. That's because the very small risk of uterine rupture (which has been known all along) is now deemed legally indefensible. Because of legal concerns, the VBAC rate has fallen from 28% to 9% in the last 8 years. This is probably the biggest single reason that the C-section rate is almost an outrageous 30%.

Initially, VBACs were not allowed. Research done in the early 1980's indicated that they were significantly safer than previously thought (because of changes in the type of incision, etc.) The VBAC rate rose precipitously and that was a good thing. Then came the lawsuits for ruptured uterus, which was always acknowledged to be a known complication.

Actually the suits were not because of VBACs per se. The allegations were made that VBACs were unsafe unless an anesthesiologist and the attending obstetrician were physically present to perform an emergency C-section in the very unlikely event that a uterine rupture occured. In response, many hospitals (in an effort to protect themselves from legal exposure) now require the attending obstetrician to be physicially present through labor (which could last 20 hours or more). This is not feasible for the average obstetrician, so VBAC is essentially impossible in those hospitals.

The end result is that many women who want a VBAC, even women who have had a successful VBAC in the past, cannot have one and are forced to have a medically unnecessary surgical procedure. These women are denied appropriate medical care because of legal concerns. That's just one of the pernicious effects of defensive medicine.

[kitty]

Kate, one good example of defensive medicine is PSA testing. USPSTF doesn't recommend it; there is no evidence that it saves lifes and it can cause harm. At the very least doctors should appraise men of the facts and let them decide. Yet, in the majority of practices, doctors simply order the test without ever telling male patients anything. The reason for it -- there have been cases where doctors told men the truth, men decided not to have the test and later sued the doctor.
Please be aware that I am not for- or against- screening, but I am for the freedom of choice and informed consent. Yet, because of the risk of malpractice our right to informed consent is constantly denied us.

What about cat scans doctors order for kids on a 1 in 1000 chance that their most-likely trivial symptoms are caused by something serious? Do you know that the chance that these cat scans may cause cancer 10 years in future may be an order of magnitude higher than the probability of any kind of benefit? Or X-raying a 3-month old with a URI? Kids are very sensitive to radiation. So for every life these testing can save, 10 or more kids may die prematurely.

What about some ObGyns who routinely send healthy symptomless women for an ultrasound? There is not a shred of evidence that this saves lives. And yes, it can cause harm because it has high rate of false positives that can lead to more invasive testing... Most organizations recommend against it. Yet some ObGyns order it.

[John Redmond]

With respect to the "100,000" people who die each year because of medical error, there is no question that safety is a major challenge. There is also the suggestion that medical malpractice has some role in improving safety. No study has shown any connection. Medical malpractice is random and targets poor outcomes. It is a tax on medical resources which could be used to improve safety such as more and better trained professionals and information systems which could actually impact on medical outcome. It also creates a blame culture rather than a problem solving culture in hospitals. It rewards a tiny number of patients and a large number of lawyers with scarce resources. It undeniably also creates a defensive mentality which further drives up costs.

[John W. Thompson, M.D.]

Ms. Steadman is correct about how difficult it is to prove that defensive medicine is an increasing problem. Over the last few years I have been doing Independent Medical Evaluations as my only medical practice activity. I have seen an increasing trend for ordering MRI's or CT scans for conditions that would never have required one of these studies t0-15 years ago. MD's often use these high tech imaging studies as a substitute for doing a thorough physical exam. When the MRI is done the doctor can tell the patient that, in the majority of cases, there is no major problem but the doctor now has proof that he/she really evaluated the patient so that if a suit is filed, the doctor is protected.

I remember many times when i knew that the patient only had a sprained ankle, but I would order an xray so that if any litigation resulted, I couldn't be accused of having missed a fracture.

As the malpractice situation has worsened defensive medicine has increased. I think that defensive medicine is one of the major reasons for the rapidly escalating costs of medical imaging.

"I have seen an increasing trend for ordering MRI's or CT scans for conditions that would never have required one of these studies t0-15 years ago. MD's often use these high tech imaging studies as a substitute for doing a thorough physical exam."

Thats because a physical exam is absolutely worthless in a court of law.

[Mike]

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