- Email: [email protected]
Defensive Medicine: A Game in Which Perception Trumps Reality
Perspectives Commentary on: Neurosurgical Defensive Medicine in Texas and Illinois: A Tale of 2 States by Cote et al. World Neurosurg 2016 http://dx.doi.org/10.1016/j.wneu.2016.01.080
Defensive Medicine: A Game in Which Perception Trumps Reality James Richard Bean
D
efensive medicine is difficult to verify but is subjectively intuitively obvious to a physician in high-risk clinical practice. Positive defensive practice implies extra and unnecessary tests or procedures, whereas negative defensive practice is defined as avoidance of high-risk procedures or patients. It is hard to decide where medical thoroughness and custom end and self-protective physician defensive motive begins. It is commonplace to perform serial computed tomography or magnetic resonance imaging scans for head trauma or in patients with intracerebral hemorrhage: is that defensive medicine, or just prudent practice? A lumbar magnetic resonance imaging is performed when a patient complains of back pain and difficulty voiding: is that fear of liability for missing a cauda equina syndrome or judicious clinical judgment?
In a paper recently published in WORLD NEUROSUGERY by Cote et al., titled “Neurosurgical Defensive Medicine in Texas and Illinois: A Tale of Two States,” the included survey leaves it up to the neurosurgeon respondents to define the motive behind their general testing and treatment decisions; however, rarely is a decision purely defensive or purely clinical prudence. Concerns for patient safety and welfare may be inseparable from concerns for personal medical liability, which confounds retrospective survey questions. Survey responses are black or white answers to motives that were shades of gray, and the retrospective nature, as well as the defined topic of the survey, invite a revision of complex reasoning to fit a simple purpose (i.e., exposing the extent of defensive medicine practice). Long-ingrained habits of defensive medical care may evolve to become standards of care and the distinction between physician self-protection and patient interest lost in the mists of time. Studdert et al.1 wrote in 2005 that “Defensive use of technology is self-reinforcing. The more
Key words Defensive medicine - Malpractice - Medicolegal environment - Neurosurgery -
WORLD NEUROSURGERY - [-]: ---, MONTH 2016
physicians order tests or perform diagnostic procedures with low predictive values, or provide aggressive treatment for low risk conditions, the more likely such practices are to become standards of care,” something they term “intensity creep.” In addition, the elimination of certain procedures is more likely to be personal practice preference than liability avoidance. A neurosurgeon may cease performing craniotomies and stick to a spinal surgery practice; that’s more likely a lifestyle or practice preference than a fear of liability. Wohns2 found in examining liability cases using closed claims that the frequency of liability was greater for spinal rather than cranial procedures, contradicting a commonly held perception. There is some evidence that physicians with more expensive treatment patterns experience fewer lawsuits, providing some justification for defensive medicine tactics. A study of physician resource use in 1 year and medical liability in the following year in Florida found that among 6 of 7 specialties, “a greater use of resources was associated with statistically significantly lower subsequent rates of alleged malpractice incidents.”3 Studies that look critically at the greater costs associated with defensive practice tend to ignore “the benefits—potentially substantial—to patients that may arise from greater use of medical services.”4 for whatever reason performed. An expensive pattern of practice is not necessarily less effective, just less economical. Claims that patients are exposed to unnecessary risks by unnecessary defensive practice testing or procedures likely exaggerate the risk and overlook the benefit. Two studies have found a direct correlation between greater levels of medical liability and greater medical costs, presumably as the result of defensive practices. Kessler and McClellan5 found that
Baptist Health Medical Group, Lexington, Kentucky, USA To whom correspondence should be addressed: James Richard Bean, M.D. [E-mail: [email protected]; [email protected]] Citation: World Neurosurg. (2016). http://dx.doi.org/10.1016/j.wneu.2016.01.083
www.WORLDNEUROSURGERY.org
1
PERSPECTIVES
among Medicare patients with ischemic heart disease or myocardial infarction in 1984, 1987, and 1990, cost growth in states with medical liability reform was 5% less for myocardial infarction and 9% less for ischemic heart disease during a 5-year period, and that the effect grew over time. Baicker et al.6 found that “increases in malpractice payments were associated with significant increases in Medicare spending on physicians in general and on imaging in particular,” with a 10% malpractice cost increase associated with a 1.5% 1.8% imaging cost increase. On the other hand, a study published in Health Affairs in 2010 found that in reviewing 15 million Cigna health insurance claims totaling $10 billion across 538,000 physicians in all specialties, that 10% reduction in level of perceived risk, as estimated by lower annual premium levels, correlated with only minimal reductions in total diagnostic and treatment costs (2% overall, 0.8% for neurosurgery).7 And a 2010 survey study of physician perception of liability risk found that physician perception of risk was not significantly decreased by state malpractice reforms. The presumed reason was “that physicians’ assessment of their risk is driven less by the true risk of malpractice claims or the cost of malpractice insurance, and more by the perceived arbitrary, unfair, and adversarial aspects of the malpractice tort process—which most traditional state reforms do not address.”8 As far as real costs, an earlier article9 that used apparently the same survey data of Diplomates of the American Board of Neurosurgical Surgery was published in NEUROSURGERY in February 2015. In that study, the authors found that malpractice insurance premiums were on average 70% greater in high-risk than in low-risk states ($128,000 vs. $75,000), whereas this study found that more than 40% of Illinois respondents reported premiums greater than 30% of gross income vs. 0% in Texas. If gross income is roughly $1 million or so, that translates to 40% of medical liability premiums in Illinois being greater than $300,000/ year, a rather astonishing figure, considering that the earlier study found that the premium as a percentage of income (not clear whether gross or net) in high-risk states averaged 19.5% compared with 14.8% in low risk states. Either Illinois is at
REFERENCES 1. Studdert DM, Mello MM, Sage WM, DesRoches CM, Peugh J, Zapert K, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005; 293:2609-2617.
2. Wohns RN. Liability is rooted in elective spine cases: four years of TDC data analyzed. AANS Bull. 2005;14:18-19.
3. Jena AB, Schoemaker L, Bhattacharya J, Seabury S. Physician spending and subsequent risk of malpractice claims: observational study. BMJ. 2015;351:h5516.
2
www.SCIENCEDIRECT.com
the extreme end of the premium cost curve, or the data are skewed. The authors properly note that payouts are lower in states with medical liability reform, but “controversy stems from whether these are frivolous lawsuits being properly excluded, or wrongfully treated patients being denied proper restitution.” This controversy is compounded by the observation in a Harvard study of 30,000 New York hospital discharges published in the 1991 NEW ENGLAND JOURNAL OF MEDICINE that “only 2 percent of negligent injuries resulted in claims, and only 17 percent of claims appeared to involve a negligent injury.”10 The U.S. social system for supporting persons with debilitating illness, or more accurately the absence of one, is confusingly entwined with the legal system for compensating negligent injury, and often financial support is sought by plaintiffs for medical misfortune in the absence of negligence as a substitute for social financing mechanisms. States with legislative medical liability reform, particularly a cap on noneconomic damages that has survived court challenge, seem financially more favorable to physicians. On the basis of Congressional inaction during the past 2 decades, it is unlikely that federal medical liability reform will pass in the foreseeable future. Even if it did, the vast majority of medical liability cases are decided in state courts under state tort liability statutes, where federal statute would have no force, assuming there is no constitutional justification for federal statute to pre-empt state jurisdiction for medical negligence. Even federally financed health care (Medicare, Medicaid, Tricare, etc.), which could implicate a federal interest, does not directly involve the implied contract between physician and patient, the legal concept of duty and responsibility, “that degree of skill, knowledge and care ordinarily exercised by a physician in the same or similar circumstances,” from which tort liability arises. This simply means that each state must remain vigilant for social and political opportunity to enact medical liability reforms. Among physicians, some degree of defensive medicine will always exist, as long as malpractice risk exists, although risk modification by tort reform may lessen the amount of defensive practice.
4. Mello MM, Chandra A, Gawande AA, Studdert DM. National costs of the medical liability system. Health Aff. 2010;29:1569-1577. 5. Kessler D, McClellan M. Do doctors practice defensive medicine? Q J Econ. 1996;111:353-390.
9. Smith TR, Habib A, Rosenow JM, Nahed BV, Babu MA, Cybulski G, et al. Defensive medicine in neurosurgery: does state level liability risk matter? Neurosurgery. 2015;76:105-113. 10. Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med. 2004;350:283-292.
6. Baicker K, Fisher ES, Chandra A. Malpractice liability costs and the practice of medicine in the Medicare program. Health Aff. 2007;26:841-852. 7. Thomas JW, Ziller EC, Thayer DA. Low costs of defensive medicine, small savings from tort reform. Health Aff. 2010;29:1578-1584. 8. Carrier ER, Reschovsky JD, Mello MM, Mayrell RC, Katz D. Physicians’ fears of malpractice lawsuits are not assuaged by tort reforms. Health Aff. 2010;29:1585-1592.
Citation: World Neurosurg. (2016). http://dx.doi.org/10.1016/j.wneu.2016.01.083 Journal homepage: www.WORLDNEUROSURGERY.org Available online: www.sciencedirect.com 1878-8750/$ - see front matter ª 2016 Elsevier Inc. All rights reserved.
WORLD NEUROSURGERY, http://dx.doi.org/10.1016/j.wneu.2016.01.083
Defensive Medicine: A Game in Which Perception Trumps Reality James Richard Bean
D
efensive medicine is difficult to verify but is subjectively intuitively obvious to a physician in high-risk clinical practice. Positive defensive practice implies extra and unnecessary tests or procedures, whereas negative defensive practice is defined as avoidance of high-risk procedures or patients. It is hard to decide where medical thoroughness and custom end and self-protective physician defensive motive begins. It is commonplace to perform serial computed tomography or magnetic resonance imaging scans for head trauma or in patients with intracerebral hemorrhage: is that defensive medicine, or just prudent practice? A lumbar magnetic resonance imaging is performed when a patient complains of back pain and difficulty voiding: is that fear of liability for missing a cauda equina syndrome or judicious clinical judgment?
In a paper recently published in WORLD NEUROSUGERY by Cote et al., titled “Neurosurgical Defensive Medicine in Texas and Illinois: A Tale of Two States,” the included survey leaves it up to the neurosurgeon respondents to define the motive behind their general testing and treatment decisions; however, rarely is a decision purely defensive or purely clinical prudence. Concerns for patient safety and welfare may be inseparable from concerns for personal medical liability, which confounds retrospective survey questions. Survey responses are black or white answers to motives that were shades of gray, and the retrospective nature, as well as the defined topic of the survey, invite a revision of complex reasoning to fit a simple purpose (i.e., exposing the extent of defensive medicine practice). Long-ingrained habits of defensive medical care may evolve to become standards of care and the distinction between physician self-protection and patient interest lost in the mists of time. Studdert et al.1 wrote in 2005 that “Defensive use of technology is self-reinforcing. The more
Key words Defensive medicine - Malpractice - Medicolegal environment - Neurosurgery -
WORLD NEUROSURGERY - [-]: ---, MONTH 2016
physicians order tests or perform diagnostic procedures with low predictive values, or provide aggressive treatment for low risk conditions, the more likely such practices are to become standards of care,” something they term “intensity creep.” In addition, the elimination of certain procedures is more likely to be personal practice preference than liability avoidance. A neurosurgeon may cease performing craniotomies and stick to a spinal surgery practice; that’s more likely a lifestyle or practice preference than a fear of liability. Wohns2 found in examining liability cases using closed claims that the frequency of liability was greater for spinal rather than cranial procedures, contradicting a commonly held perception. There is some evidence that physicians with more expensive treatment patterns experience fewer lawsuits, providing some justification for defensive medicine tactics. A study of physician resource use in 1 year and medical liability in the following year in Florida found that among 6 of 7 specialties, “a greater use of resources was associated with statistically significantly lower subsequent rates of alleged malpractice incidents.”3 Studies that look critically at the greater costs associated with defensive practice tend to ignore “the benefits—potentially substantial—to patients that may arise from greater use of medical services.”4 for whatever reason performed. An expensive pattern of practice is not necessarily less effective, just less economical. Claims that patients are exposed to unnecessary risks by unnecessary defensive practice testing or procedures likely exaggerate the risk and overlook the benefit. Two studies have found a direct correlation between greater levels of medical liability and greater medical costs, presumably as the result of defensive practices. Kessler and McClellan5 found that
Baptist Health Medical Group, Lexington, Kentucky, USA To whom correspondence should be addressed: James Richard Bean, M.D. [E-mail: [email protected]; [email protected]] Citation: World Neurosurg. (2016). http://dx.doi.org/10.1016/j.wneu.2016.01.083
www.WORLDNEUROSURGERY.org
1
PERSPECTIVES
among Medicare patients with ischemic heart disease or myocardial infarction in 1984, 1987, and 1990, cost growth in states with medical liability reform was 5% less for myocardial infarction and 9% less for ischemic heart disease during a 5-year period, and that the effect grew over time. Baicker et al.6 found that “increases in malpractice payments were associated with significant increases in Medicare spending on physicians in general and on imaging in particular,” with a 10% malpractice cost increase associated with a 1.5% 1.8% imaging cost increase. On the other hand, a study published in Health Affairs in 2010 found that in reviewing 15 million Cigna health insurance claims totaling $10 billion across 538,000 physicians in all specialties, that 10% reduction in level of perceived risk, as estimated by lower annual premium levels, correlated with only minimal reductions in total diagnostic and treatment costs (2% overall, 0.8% for neurosurgery).7 And a 2010 survey study of physician perception of liability risk found that physician perception of risk was not significantly decreased by state malpractice reforms. The presumed reason was “that physicians’ assessment of their risk is driven less by the true risk of malpractice claims or the cost of malpractice insurance, and more by the perceived arbitrary, unfair, and adversarial aspects of the malpractice tort process—which most traditional state reforms do not address.”8 As far as real costs, an earlier article9 that used apparently the same survey data of Diplomates of the American Board of Neurosurgical Surgery was published in NEUROSURGERY in February 2015. In that study, the authors found that malpractice insurance premiums were on average 70% greater in high-risk than in low-risk states ($128,000 vs. $75,000), whereas this study found that more than 40% of Illinois respondents reported premiums greater than 30% of gross income vs. 0% in Texas. If gross income is roughly $1 million or so, that translates to 40% of medical liability premiums in Illinois being greater than $300,000/ year, a rather astonishing figure, considering that the earlier study found that the premium as a percentage of income (not clear whether gross or net) in high-risk states averaged 19.5% compared with 14.8% in low risk states. Either Illinois is at
REFERENCES 1. Studdert DM, Mello MM, Sage WM, DesRoches CM, Peugh J, Zapert K, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005; 293:2609-2617.
2. Wohns RN. Liability is rooted in elective spine cases: four years of TDC data analyzed. AANS Bull. 2005;14:18-19.
3. Jena AB, Schoemaker L, Bhattacharya J, Seabury S. Physician spending and subsequent risk of malpractice claims: observational study. BMJ. 2015;351:h5516.
2
www.SCIENCEDIRECT.com
the extreme end of the premium cost curve, or the data are skewed. The authors properly note that payouts are lower in states with medical liability reform, but “controversy stems from whether these are frivolous lawsuits being properly excluded, or wrongfully treated patients being denied proper restitution.” This controversy is compounded by the observation in a Harvard study of 30,000 New York hospital discharges published in the 1991 NEW ENGLAND JOURNAL OF MEDICINE that “only 2 percent of negligent injuries resulted in claims, and only 17 percent of claims appeared to involve a negligent injury.”10 The U.S. social system for supporting persons with debilitating illness, or more accurately the absence of one, is confusingly entwined with the legal system for compensating negligent injury, and often financial support is sought by plaintiffs for medical misfortune in the absence of negligence as a substitute for social financing mechanisms. States with legislative medical liability reform, particularly a cap on noneconomic damages that has survived court challenge, seem financially more favorable to physicians. On the basis of Congressional inaction during the past 2 decades, it is unlikely that federal medical liability reform will pass in the foreseeable future. Even if it did, the vast majority of medical liability cases are decided in state courts under state tort liability statutes, where federal statute would have no force, assuming there is no constitutional justification for federal statute to pre-empt state jurisdiction for medical negligence. Even federally financed health care (Medicare, Medicaid, Tricare, etc.), which could implicate a federal interest, does not directly involve the implied contract between physician and patient, the legal concept of duty and responsibility, “that degree of skill, knowledge and care ordinarily exercised by a physician in the same or similar circumstances,” from which tort liability arises. This simply means that each state must remain vigilant for social and political opportunity to enact medical liability reforms. Among physicians, some degree of defensive medicine will always exist, as long as malpractice risk exists, although risk modification by tort reform may lessen the amount of defensive practice.
4. Mello MM, Chandra A, Gawande AA, Studdert DM. National costs of the medical liability system. Health Aff. 2010;29:1569-1577. 5. Kessler D, McClellan M. Do doctors practice defensive medicine? Q J Econ. 1996;111:353-390.
9. Smith TR, Habib A, Rosenow JM, Nahed BV, Babu MA, Cybulski G, et al. Defensive medicine in neurosurgery: does state level liability risk matter? Neurosurgery. 2015;76:105-113. 10. Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med. 2004;350:283-292.
6. Baicker K, Fisher ES, Chandra A. Malpractice liability costs and the practice of medicine in the Medicare program. Health Aff. 2007;26:841-852. 7. Thomas JW, Ziller EC, Thayer DA. Low costs of defensive medicine, small savings from tort reform. Health Aff. 2010;29:1578-1584. 8. Carrier ER, Reschovsky JD, Mello MM, Mayrell RC, Katz D. Physicians’ fears of malpractice lawsuits are not assuaged by tort reforms. Health Aff. 2010;29:1585-1592.
Citation: World Neurosurg. (2016). http://dx.doi.org/10.1016/j.wneu.2016.01.083 Journal homepage: www.WORLDNEUROSURGERY.org Available online: www.sciencedirect.com 1878-8750/$ - see front matter ª 2016 Elsevier Inc. All rights reserved.
WORLD NEUROSURGERY, http://dx.doi.org/10.1016/j.wneu.2016.01.083